Jurisprudence Lawcards 2012 - 2013
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The legal and political theory of Thomas Hobbes represents a watershed, a pivotal turning moment in western intellectual thought – a rejection of religious based arguments for the justification of the political and legal spheres. Political authority was defined by Hobbes in non religious secular terms and Hobbes's legal theory sought to explain law in terms of human power and authority rather than in any link to a transcendent natural law order. In other words Hobbes's political and legal theory marked a break from the rooting of political and legal institutions in cosmological arguments as had been the case before Hobbes to a rejection of the cosmos or God as an explanation of political and legal order. The essay discusses the 'cosmological' view of law prevalent before Hobbes and for sometime afterwards down to the emergence of modern secular views of law in the writings of Bentham, Weber and Hart.
A skeleton essay is given.
- Discussion of the central importance of Thomas Hobbes on legal theory
- Discussion of the prevailing 'natural law' view of law before Hobbes with reference to Cicero, St. Augustine and St. Aquinas
- The Enlightenment assault on natural law theory with especial reference to Bentham
- Natural law theory today.
- The continued dominance of Hobbes's conception of law.
Hobbes completely replaced the previous concern to see human law as linked to a divinely created natural law with a picture of law as man's only resource against violence and disorder. A sovereign authority is needed to protect men from the threats of others men. In the pre-legal 'state of nature' men suffer chronic insecurity and fear of attack from others and life is in the words of Hobbes 'nasty, solitary, brutish and short'. The rise of a central authority with an effective legal system marks the beginning of security and so all persons have an obligation to support the central power so long as it keeps civil peace. Hobbes gave us an understanding of human law which had no link to God or the cosmos in the words of Shirley Letwin for Hobbes law had 'no cosmic anchor' (see 'On the History of the Idea of Law' 2005) and for Hobbes law is entirely the product of human will- the will of the sovereign legislator. For Hobbes obedience to the sovereign is obedience to the law which is the expression of the sovereign's will. Hobbes comments on his legal theory in Chapters 25 and 26 of 'Leviathan' (1651):
'law in general, is not counsel, but command... Command is, where a man saith, do this, or do not this,without expecting other reason than the will of him that says it...none can make laws but the sovereign only: and that commands, are to be signified by sufficient signs....that the law is a command consisteth in declaration, or manifestation of the will of him that commandeth... Nor is it enough that law be written, and published; but also that there be manifest signs, that it proceedeth from the will of the sovereign.. public registers..public seals..by which all laws are sufficiently verified...the authority of the law consisteth in the command of the sovereign only.'
This view of law provided by Hobbes has been incredibly influential on later legal theorists such as Bentham, Austin, Kelsen, Hart and Raz. Hobbes's theory of law can be broken down into a few central elements:
(1) Law is the product of human will only and derives all of its authority from the power and authority of the human sovereign whether King, Parliament or dictatorship. This view of law obviously influenced Bentham in his attack on the idea in the late eighteenth century that there were any 'natural rights or laws' which exist before the sovereign has legislated legal rights.
(2) Law is the 'command of the sovereign'. Clearly this idea of Hobbes influenced Bentham and Austin's ' command theories of law'.
(3) Law claims authority in that the sovereign expects his laws to be obeyed because they are the sovereign's laws. This idea of Hobbes obviously influenced Raz in his idea that the law by its nature claims legitimate authority to rule supreme in a territory: see Raz 'The Authority of Law' (1979)
(4) Law is to be distinguished from other standards such as morality or religion by what Hobbes termed 'sufficient or manifest signs' such as public registers of laws. Obviously Hart's idea in 'The Concept of Law' (1961) of a 'rule of recognition' in all legal systems to distinguish law from morality or custom was derived from Hobbes.
However the core idea of Hobbes in his political and legal theory was to exclude God and the Bible from any part of the explanation of political and legal institutions. Richard Tuck writes in the Introduction to the Cambridge version of 'Leviathan' (1991):
'In all his works, Hobbes firmly denied the relevance of a conventional concept of a benevolent God to any philosophical enquiry...this determination to exclude a conventional notion of God from his philosophy persisted throughout all Hobbes's later works, including Leviathan.'
Before Hobbes ,'the big 5' of legal theory: Plato, Aristotle, Cicero, St. Augustine, St. Aquinas had all to a lesser or greater extent made the authority of human law turn on its relationship to God given 'natural law' or on human law's link to the eternal 'cosmos'.
Plato and Aristotle
As Shirley Letwin comments in 'On the History of the Idea of Law':
'No philosopher is more emphatic about the opposition between law and tyranny than Plato. He defines a tyrant as a ruler who is at liberty to do what he pleases...the extreme of servitude is to serve man. .Plato says 'the god of sober men is law.' To substitute the rule of law for tyranny ought to be the aim of every ruler, for only in that way could a city prosper. For Plato law secures the stability of the city.'
Like Plato, Aristotle saw law as the source of order in communal life. Aristotle commented that Law is defined as 'Reason free from all passion.' However for Aritotle law also served to make people virtuous or good. As Letwin comments:
'For the law is then supposed to teach the members of a society a particular way of living, and does so by imposing a 'system of order' on the activities of all citizens. The object of law is education in its broadest sense...a rule of life such as will make its members good and just. Because law gives a collection of men a common quality, Aristotle says that the law instructs, and that the art of the legislator moulds the citizens. Legislators make men good by forming habits in them. What distinguishes the 'instruction' provided by the law from that of the family is the coercion attached to law. Aristotle identifies the law with the rules of an educational enterprise.'
As Shirley Letwin comments:
'we have inherited from the ancient Greeks two ideas of law: one as a means of preserving peace and the other as a means to achieving human perfection.'
However it is from Cicero the Roman politician, orator and jurist that the first clear link is made between human law and a God created 'natural law'. Cicero is often called the 'father' of natural law theory for it is his account of an eternal, unchanging realm of moral law created by God that formed the basic outline of natural law theory developed to its full extent by the master of natural law theory St. Thomas Aquinas in the 13th century some one thousand and two hundred years after Cicero's death in December 43 B.C. Cicero wrote of the eternal natural law against which all human law in all times is measured:
'true law is right reason, consonant with nature, spread through all people. It is constant and eternal...all nations at all times will be bound by this one eternal and unchangeable law...it is something eternal which rules the entire universe through the wisdom of its commands and prohibitions..just as that divine mind is the highest law, so too when in a human being it is brought to maturity, it resides in the mind of wise men' – Cicero 'On the Commonwealth and On the Laws'
This account of the natural law provided by the non Christian pagan Cicero played an important part in St. Thomas Aquinas' Christian analysis of natural law but St. Thomas Aquinas developed the idea of natural law far past Cicero's understanding of the natural law concept therefore although Cicero is the 'father' of natural law theory he is not the master of it-that accolade, master of natural law belongs to St. Thomas Aquinas.
In Augustine's mature thought there is no trace of a theory of the state as concerned with man's perfection or with 'educating' man towards such purposes. The state's function is more restricted- to cancel out at least some of the effects of sin. Political authority and law serves to remedy the conflict, disorder and tensions of society. In a world of radical insecurity- 'this hell on earth'- the state and its laws serve this purpose according to St. Augustine:
'while they are feared, the wicked are held in check, and the good are enabled to live less disturbed among the wicked.'
For St. Augustine salvation for human beings could only come from an act of divine mercy by God and therefore the purpose of human law given the nasty brutishness of man was to provide a bulwark to secure society against disintegration.
As R.A. Markus comments in 'Saeculum: History and Society in the theology of St. Augustine' (1970):
'Control of the wicked within the bonds of a certain earthly peace remained Augustine's fundamental thought about the purpose of government....Political arrangements were for the safeguarding and fostering of a lowly form of peace: the public order and security which human sin has made unstable in society.'
As Shirley Letwin comments:
'Augustine repudiated the conception of a ruler or legislator as an intermediary between the earthly community and the heavenly kingdom, and instead regarded the object of the legislator as being to remedy the disorder of 'this hell upon earth.'
A much more complicated idea of the purpose of law to St.Augustine was provided by St. Thomas Aquinas. St. Aquinas under the influence of Aristotle argued that the state was not merely an institution devised to control and limit the unreasonable passions and appetites of human society but rather that the state was necessary for human beings to lead a real and full human life. Whereas for St. Augustine the state and its laws were a necessary evil given the prevalence of human sin, for St. Aquinas the state and its laws were a necessary good to enable men to lead a good life on earth.
St. Aquinas takes a much more positive view of law than St.Augustine. For St. Aquinas law is the primary proper means of co-ordinating civil society for the common good. The natural law was for S. Aquinas the ultimate guide for rulers on earth seeking to govern society wisely for the common good. For Aquinas natural law is 'imprinted' in human reason and is therefore evident to everyone who uses reason. Aquinas wrote of the natural law:
'The natural law is promulgated by the very fact that God instilled it into man's mind so as to be known by him naturally.'
For Aquinas the natural law is the cosmic link between the positive laws made by men that rule earthly cities and the Divine law. Human law has its authority and justness to the extent that it conforms with the God given unwritten natural law.
Thomas Hobbes and after
For Thomas Hobbes the authority of human law did not reside in any compliance with a mysterious 'natural law' as St. Aquinas had argued. For Hobbes the authority of law lay solely in the fact that law was promulgated or 'commanded' by the sovereign authority- 'The Leviathan'. However natural law theory did not die out immediately after Thomas Hobbes. For example John Locke, whose political theory ideas of the clear separation of powers and limited Government was a major influence on the framers of the United States constitution, had in his legal theory asserted a form of natural law theory. John Locke wrote:
' If natural law is not binding on men, neither can any human positive law be binding. For the laws of the civil magistrate derive their whole force from the constraining power of natural law...the binding force of civil law is dependent on natural law.'
This view of Locke that human law derived all its authority from natural law would have been totally rejected by Thomas Hobbes. However despite Hobbes natural law theory continued to have supporters in the period after Hobbes. Hugo Grotius and Samuel Pufendorf were two late seventeenth century writers who continued the natural law tradition.
However Jeremy Bentham in the late eighteenth century under the influence of the writings of Hobbes clearly repudiated any natural law views about law.
Jeremy Bentham was a product of the eighteenth century Enlightenment or 'age of reason'. The Enlightenment was an attack on old habits of thought which were alleged to rest on the dark forces of superstition, irrationality and religion. One doctrine which came under attack during the Enlightenment was the doctrine of natural law which had been the dominant jurisprudential doctrine before the Enlightenment. Bentham and other Enlightenment thinkers such as Montesquieu attacked the idea that there was a universal natural law applicable to and binding on all mankind, created by God and discoverable through reason and which formed a basis for the promulgation and authority of man-made law. Bentham argued that the natural law was 'a mere work of the fancy' having no basis in reality and that it was not a God-given natural law which gave man-made law its authority but rather human authority alone which established the authority of man made law.In other words human law was merely the result of the 'commands of the sovereign' and did not derive its authority from any link to a mystical and fictitious 'natural law.'
It is important to take note of the historical context in which Bentham formulated his 'command theory of law'. Bentham was keen to refute the idea of natural law thinkers such as Grotius that there could be property rights in the 'natural law sphere' even before man-made law had spoken. For Grotius the ultimate origin of the right of property was that God at creation had given the earth to mankind and so there could be 'natural' rights of property before the say-so of man-made law. For Bentham this natural law doctrine was to be completely rejected. For Bentham, following Hobbes and Hume, only such goods and property that had been assigned to a man by positive law (man-made law) could be said to belong to him. For Bentham property and man-made law were born together and there could be no property rights before man-made law had spoken and therefore for Bentham natural law theory was to be rejected .Indeed natural law theory went into a steep decline in the nineteenth century following the Enlightenment attack of Bentham and others and natural law theory only revived in importance in the twentieth century. For Bentham the man-made law derived its authority not from God or the natural law but from the fact of promulgation by a sovereign- the law was the 'commands of the sovereign'- no more, no less.
Jeremy Bentham’s “command theory” visualized law not as a reflection of the ordered universe, but as the expression of power. For Shirley Letwin in 'On the History of the Idea of Law', Bentham's legal theory marks a critical turning point in our understanding of law. In fact, she claims that Bentham’s association with the positivist theory of law (she says that he is often described as the “father of positivist jurisprudence”) severely undervalues his overall contribution to moving the conception of law in a new direction towards seeing law purely as a result or instrument of human power.
Following the 'Enlightenment' or the 'Age of Reason' in the late eighteenth century natural law went into a sharp decline. The German sociologist Max Weber in 1920 'On Law in Economy and Society' commented that natural law theory was dead:
the axioms of natural law have been deeply discredited....In consequence of both rationalism and modern intellectual scepticism in general, the axioms of natural law have lost all capacity to provide the fundamental bases of a legal system...The disappearance of the old natural law conceptions has destroyed all possibility of providing the law with a metaphysical dignity by virtue of its immanent qualities.'
According to Weber modern law cannot claim for its dignity and authority any connection to natutal law since few people believe in the existence of a natural law anymore. Human law is seen now according to Weber as merely
'the product or the technical means of a compromise between conflicting interests.'
Any authority modern law has according to Weber, lies in 'legality'- the routine and impersonal application of legal rules by impartial officials. Citizens respect the authority of the law because the law is applied in an impersonal and impartial manner to all citizens. It is easy to see how Weber influenced Professor Hart in 'The Concept of Law' where Hart defines law as a union of different kinds of officially admininistered rules. Weber argued that the authority of the law in the modern era did not reside in a fictional 'natural law' but rather there is general obedience to law by virtue of 'legality': by citizen's belief in the validity of legal statute and official competence based on rationally created rules.
Alf Ross and critique of natural law
The Scandanavian Alf Ross in 'On Law and Justice' argues that because 'natural law' is such an indistinct and mysterious idea it is an ideology that can be used to justify injustice on earth:
'The ideology does not exist that cannot be defended by an appeal to the law of nature. And, indeed, how can it be otherwise, since the ultimate basis for every natural right lies in a private direct insight, an intuition. The historical variability of natural law supports the interpretation that natural law postulates are merely constructions to buttress emotional attitudes and the fulfillment of certain needs.'
Natural law today
There has been something of a revival of natural law theory in the last thirty years with such writers as John Finnis, Mark Murphy, Robert George and Michael Moore re-invigoarating the old natural law tradition for a new generation. However as Lloyd Weinreb comments in 'The Moral Point of view' (in 'Natural Law, Liberalism and Morality' edited by Robert George 1996) natural law theory is today seen as outside the mainstream and not engaged with by leading legal theorists such as Dworkin and Raz. Weinreb comments:
'for, although natural law has its adherents and periodically prompts a fierce attack from its detractors, the blunt truth is that philosophically it is a curiosity outside the mainstream, regarded mostly as a side-show and not to be taken very seriously. Defending natural law as philosophy, one becomes accustomed to seeing a wry smile on the faces of listeners, as if one were describing a private and somewhat peculiar hobby.'
The mainstream in legal philosophy was first established by Thomas Hobbes in 1651 who in his masterwork 'Leviathan' saw law as a human artifact only and that the law's authority rested in human institutions, for Hobbes the 'sovereign,' and that law did not look beyond to a natural law for validation.
For a very good history of the idea of law from Plato to modern times including discussion of Thomas Hobbes see 'On the History of the Idea of Law' (2005) by Shirley Letwin. Hobbes's 'Leviathan' is discussed in the Oxford World's Classics edition of 'Leviathan' (1996). Good discussion of 'Leviathan' is found in Canbridge Texts in the History of Political Thought (1991) edited by Richard Tuck.
Good essays are the gateway to top marks. The Good, The Fair, and The Ugly shows you the style of essay which works well in exams, as well as the simple errors that can cost you essential marks. Written by our Q&A authors, each of these interactive essay-based tutorials highlights key themes and common errors and illustrates essays of specific standards:
Whilst marking criteria will vary, as a general guide, the Good answer will be based on a general mark of a first or upper second class; the Fair answer will be based on a lower second or third class and the Ugly answer would result in a fail.
'The 'command theory' of law produced by Bentham and Austin has been widely criticized. Is there anything to be said in favour of the 'command theory'?'
It has become orthodoxy in legal theory to assert that Professor Hart in The Concept of Law (1961) effectively demolished John Austin's 'command theory of law' and that the 'command theory' is friendless in modern jurisprudential circles. William Twining in Globalisation and Legal Theory (2000) comments that, ‘in 1961 Herbert Hart secured his own reputation by destroying Austin's’.
It has become equally orthodox in legal theory to assert that Bentham must be clearly distinguished as a legal theorist from Austin and that Bentham's legal theory is much less vulnerable to attack than Austin's pale copy of Bentham's work. (1)(1) Answer clearly distinguishes Austin from Bentham as legal theorists as is the current jurisprudential trend, which gives nearly all of the credit in legal theory to Bentham not Austin. An example of the modern jurisprudential trend to denigrate Austin whilst building up Bentham is provided by Professor Raz, who in 'Utilitas' (1993) comments, ‘Hart rightly saw in Austin a second-rate mind regurgitating Bentham's insights into the nature of law, giving them a simple and tidy shape’.
The current jurisprudential orthodoxy points out that whereas Austin confined jurisprudence to the analysis and description of actual law, Bentham, although providing a theory of law as it is, also had radical ideas of what the law should be. Bentham, then, is considered by orthodox modern jurisprudence to be a much more radical and penetrating thinker than Austin because Bentham had a normative theory of law (Bentham had a very clear view of 'what law should be') as well as being descriptive of actual law.(2) Answer asserts that Bentham had very clear views on what the law should be. Bentham was a radical would-be reformer of law as well as a describer of law. Bentham had a clear view of what law should be in that (1) he believed that law should be a mighty instrument of State power to achieve the greatest happiness of the greatest number of persons, and (2) he strongly favoured the comprehensive codification of the law and the abolition of judicial power to make law.
Even in his description of actual law Bentham is considered, by modern legal thought, to be far superior to Austin in his analysis of actual legal systems. Professor Hart, in The Concept of Law, famously criticized Austin's 'command theory' for not recognising that not all laws are 'commands' and that some laws are actually 'permissions' allowing the citizen to shape his own life through making contracts, marriages and wills, for example. However, Bentham's version of the 'command theory' is much more subtle than Austin's version. Bentham clearly recognised that different laws had different forms and performed different functions. Bentham made a careful classification of the different laws that may issue from the sovereign. Laws can include permissions thought Bentham, as well as commands. In Of Laws in General (1782) Bentham argued that there were four kinds of 'mandates' that the law could promulgate: (1) command; (2) non-command; (3) prohibition; and (4) permission. Bentham gave the following illustration to differentiate the varying kinds of laws in his analysis:
- Every householder shall carry arms (command);
- No householder shall carry arms (prohibition);
- Any householder may forbear to carry arms (non-command);
- Any householder may carry arms (permission).
Therefore, as a matter of pure 'description' of a legal system, Bentham's account is less vulnerable to attack than Austin's account, since Bentham was more analytically accurate in his description of actual legal practice, accounting for the 'variety of laws' in a standard legal system.(3) Answer clearly states that Bentham's description of a legal system was much subtler than Austin's, as Bentham accounted for the variety of laws in a legal system.
However, the orthodox view of modern jurisprudence, which sees Bentham, and not Austin, as the 'father' of English jurisprudence, although substantially correct, is in need of some adjustment. Although Austin lacked the radical legal reform programme of his mentor Bentham, it is unfair to label Austin as a mere bland repeater of Bentham's insights into law. Austin, as well as Bentham, had a vision of what law ought to be.(4) Answer clearly states that Austin had a vision of what a legal system could be in terms of his belief in universal education of the population so that the population could accept law on reason rather than fear. Roger Cotterrell, in The Politics of Jurisprudence (2003), points out that Austin wanted a more rational relationship between the sovereign and the commanded population than one based on fear of coercion. Austin argued that in a soundly educated population, reason would play a more important role than fear in the relationship between the sovereign and its commands and the population. John Austin, as Cotterrell points out, ‘believed fervently in the need for universal education, which would make it possible for the broad population to distinguish sound policy . . . from the lies and fallacies of those who would use them to sinister purposes’.
Austin's image of the centralised state relying on coercion to secure obedience ran alongside a more utopian vision of Austin's, where the state is based on reason: Government guided by the principle of utility and a population willingly co-operating through reason not fear. Therefore, the modern jurisprudential orthodoxy, which sees Bentham as a great analytical jurist and Austin as a mere repeater of what Bentham wrote (without Bentham's law reform radicalism), is not altogether an accurate picture.
The 'command theory' of Bentham and Austin holds that the law of a community is identified by identifying the 'commands of the sovereign'. Positive law consists of those commands laid down by a sovereign to be contrasted with the dictates of morality or religion. The 'sovereign' is defined as a person or collection of persons who receives habitual obedience from the bulk of the population but who does not habitually obey any other person or institution. The 'command theory' makes the identification of the law of a community depend on social facts; the 'sovereign' is identified by looking at patterns of obedience in the bulk of the population and then then we should ask: 'what has the sovereign commanded?'(5) Answer identifies what the command theory is and how the 'sovereign' is to be identified. The 'command theory' method of sharply distinguishing legal standards from morality by asking 'what has the sovereign commanded?' has been influential. Professor Hart in 'The Concept of Law' (1961) distinguished law from morality in the form of a master 'rule of recognition.' Professor Raz in The Authority of Law (1979) has said that the heart of legal positivism is the 'sources thesis': the idea that the existence and content of all law can be determined by reference to social sources and that a moral argument is not needed to work out the content of the law. The 'command theory', by identifying law by reference to what the 'sovereign has commanded', is an example of the 'sources thesis', and to that extent the 'command theory' has been influential.(6) Answer identifies that the 'command theory' view that law is identified by factual not moral tests has been influential in modern legal positivism, for example, see Raz's 'sources thesis'.
The 'command theory' builds the idea of a sanction into the very idea of law. A 'command' involves an expressed wish from a 'superior' that something be done or not done by an 'inferior' and a sanction be imposed if that wish is not complied with. Both Bentham and Austin make the law's 'normativity', that is, how the law binds citizens depends on the existence of sanctions. For Austin and Bentham the law secured compliance through the threat of a sanction for non-compliance. Modern jurisprudential orthodoxy is that Austin and Bentham were wrong to locate law's normativity in the existence of sanctions for non-compliance. Modern jurists, such as Professor Raz, locate the law's ability to bind citizens in the law's claim to legitimate moral authority: the law claims to provide citizens with morally justified reasons for action. The existence of sanctions in a legal system are an important but subsidiary source of reasons for citizens to comply with the law. (7) Answer clearly notes the importance of sanctions in the command theory of Austin and Bentham.
However, the stress on coercion (sanctions) by Bentham and Austin should not be dismissed out of hand. The 'command theory' captures well the extensive coerciveness of many systems of law and the importance of power to the maintenance of the state.(8) Answer clearly states that modern jurisprudence plays down the role of sanctions in legal theory although sanctions are considered by Raz and others to be important but subsidiary reasons for compliance to the law. It is the law's claim to moral authority, not sanctions, that explains why law binds persons according to Raz. Frederick Schauer, in an article in Ratio Juris (March 2010) entitled 'Was Austin right after all? On the role of sanctions in a theory of law', comments that it may be Austin rather than his critic Hart that is nearer to the truth of modern legal systems,
. . . the experience of modern complex legal systems may indeed be more coercive than the tone of Hart's criticism suggests. It is true that there exists the largely non-coercive and non-sanction based realm of contract, wills, trust and much of private ordering . . . . But just as the possibilities of private ordering have increased, so have the forms of state regulation, and arguably even more so. Tax laws are more complex and more intrusive, and the modern regulatory state controls numerous aspects of what would earlier have been thought of as unregulated, whether in the area of labour and employment, workplace safety, consumer transactions . . . the complexity of the modern world has made Austin's focus on a vertical relationship between authority and subject, and on a legal regime that seems most of all to be coercive, to be more rather than less empirically accurate.
Indeed, it is Austin's focus on the coerciveness of law, rather than Hart's emphasis on the non-coercive aspects of law, that seems to fit modern legal systems better. If jurisprudence aims to be descriptive of the actual social reality of law then law's coercive dimension, so well captured in the 'command theory', needs to be emphasised. The law's coercive dimension is not only how vast numbers of persons across the world see and experience the law, but also, in the real explanation, why people including many legal officials actually obey the law.(9) Answer clearly states that coercion (sanctions) may have a more important role in modern legal systems than Hart allowed for in 'The Concept of Law'. Law's coerciveness is how many people view the law. In stressing the coercive aspect of law, the 'command theory' seems more in tune with the modern world of 2010 than Hart's stress on the non-coercive aspects of law in the relatively crime-free and relatively unregulated social world of 1961 England, when he wrote The Concept of Law.
The 'command theory' of law is also in tune with modern legal reality in the command theory's stress on legislation as the primary legal source.(10) Answer clearly states that the 'command theory' is in tune with modern law to be statute based with the common law very much taking a second place. Bentham famously argued for the removal of the judicial power to make law through the common law and the extensive codification of English law. Austin, with a cooler realism than Bentham, recognised the need for judge-made law but argued for more extensive codification of law. The law of England has become much more statute based since the deaths of Bentham and Austin in the nineteenth century and, to that extent, the law of England at present fits better with the 'command' model of law issuing from a sovereign power than when Bentham started writing in the late eighteenth century, when common law was a much more dominant source of law in England than it is now.
The command theory captures the intimate connection between law and centralized political control: law on the 'command theory' emanates from the sovereign power to ensure civil order (see Thomas Hobbes' Leviathan (1651). Hobbes' work was the historical origin for the view that laws are the commands of the sovereign. The development of law allows the development of a strong centralized polity, and this is captured well in the idea of law as the product of strong sovereign power: law as the 'commands of the sovereign'. Presidents and leaders have always made claims to represent the common good through law but, as Foucault pointed out, law is often a mask for power, and the 'command theory', by offering a non-idealised analysis of law, captures the fact that law can often be used by ruling elites for self-interested purposes other than the realization of the common good. The 'command theory' captures the realistic idea that law is often nothing more than the 'commands of the sovereign', and to suggest law is anything more noble than that, such as proposing, as the natural lawyers do, an inevitable and inescapable connection between law and the common good, is to distort the true face of law as it has appeared through the centuries. (11) Answer clearly points out that the exercise of power and not the realization of the common good is often the motive behind the emergence of law and the 'command theory' can explain the emergence of state law wherever it is found in its non-idealistic 'factual' analysis of law and legal systems. The 'command theory' can point to certain facts about human nature that support the view that human law should never be idealised and that there is a tendency in all human affairs for things to go badly, and that includes the use of law for morally bad purposes. Therefore, law should be viewed as merely the 'commands of the sovereign' in order to take account of unpleasant facts about human nature including the self-interested natures of many rulers of human societies. Anthony Quinton comments in The Politics of Imperfection (1978),
Secular thinkers, in the strongest sense of the word, thinkers who are overtly hostile to religion, can consistently affirm man's moral imperfection as an empirically discovered fact about his nature . . . examples are Hobbes , with his melancholy account of the natural motivation of mankind, and Hume, with his belief in the confined character of natural generosity.
Perhaps the greatest legacy of the 'command theory' of Austin and Bentham to legal theory is in an 'attitude' or 'approach' to law as a social phenomena, which has been followed by later theorists, such as Professor Hart, even if Hart has rejected the 'command theory' in favour of his own model of law as 'a system of institutionalised rules.' While Austin and Bentham refused to romanticise law and legal systems, but rather analysed them in 'scientific', morally neutral terms, Professor Hart in The Concept of Law followed the methodology of the command theorists, even if he discarded the actual 'command theory'. Professor Hart commented in Essays on Bentham (1982) on Bentham's approach to the study of law as a social institution, 'this calculatedly neutral approach to definition of legal and social phenomena: his insistence on a precise and so far as possible a morally neutral vocabulary for use in the discussion of law and politics'.
Hart terms this approach of Bentham to the analysis of law the 'sane and healthy' heart of the legal positivistic tradition: a refusal to romanticise and idealise the institution of law.(12) Answer clearly states that Bentham influenced later theorists such as Hart in 'The Concept of Law'(1961) by examining law with a cool detachment and refusing to romanticise or idealise law as a social institution. Before Bentham, the judge and writer Sir William Blackstone had idealised and romanticised English common law in his Commentaries on the Laws of England (1765), which had linked the common law of England with divine law. After Hart, Professor Finnis, the modern reviver of natural law theory, had idealised the analysis of law in legal theory. Professor Finnis, in Natural Law and Natural Rights (1980), had idealised law by identifying the 'central case' of law with an ordering of reason for the common good, in the spirit of Thomas Aquinas in the thirteenth century.
Austin and Bentham founded a tradition of legal thought with regard to law that was realistic and unromantic in outlook, examining law in social-scientific terms. It is to this tradition of Benthamite thought towards law: realistic and unromantic in outlook, that Professor Hart followed in The Concept of Law, even if he rejected the actual 'command theory' of law as an adequate explanation of the social institution called 'law'.
'The 'command theory' of law produced by Bentham and Austin has been widely criticized. Is there anything to be said in favour of the 'command theory'?'
The 'command theory' of Bentham and Austin holds that the law of a community is identified by identifying the 'commands of the sovereign'. Positive law consists of those commands laid down by a sovereign to be contrasted with the dictates of morality or religion. The 'sovereign' is defined as a person or collection of persons who receives habitual obedience from the bulk of the population, but who does not habitually obey any other person or institution. The 'command theory' makes the identification of the law of a community depend on social facts: the 'sovereign' is identified by looking at patterns of obedience in the bulk of the population and then then we should ask: 'what has the sovereign commanded?'(1) Answer identifies what the command theory is and how the 'sovereign' is to be identified. The 'command theory' method of sharply distinguishing legal standards from morality by asking 'what has the sovereign commanded?' has been influential. Professor Hart in The Concept of Law (1961) distinguished law from morality in the form of a master 'rule of recognition'. Professor Raz in The Authority of Law (1979) has said that the heart of legal positivism is the 'sources thesis', the idea that the existence and content of all law can be determined by reference to social sources and that a moral argument is not needed to work out the content of the law. The 'command theory', by identifying law by reference to what the 'sovereign has commanded', is an example of the 'sources thesis' and, to that extent, the 'command theory' has been influential.(2) Answer identifies that the 'command theory' view that law is identified by factual not moral tests has been influential in modern legal positivism, for example, see Raz's 'sources thesis'.
The 'command theory' builds the idea of a sanction into the very idea of law. A 'command' involves an expressed wish from a 'superior' that something be done or not done by an 'inferior', and a sanction to imposed if that wish is not complied with. Both Bentham and Austin make the law's 'normativity', that is, how the law binds citizens depends on the existence of sanctions. For Austin and Bentham the law secured compliance through the threat of a sanction for non-compliance. Modern jurisprudential orthodoxy is that Austin and Bentham were wrong to locate law's normativity in the existence of sanctions for non-compliance. Modern jurists, such as Professor Raz, locate the law's ability to bind citizens in the law's claim to legitimate moral authority: the law claims to provide citizens with morally justified reasons for action. The existence of sanctions in a legal system are an important but subsidiary source of reasons for citizens to comply with the law. (3) Answer clearly notes the importance of sanctions in the command theory of Austin and Bentham.
However, the stress on coercion (sanctions) by Bentham and Austin should not be dismissed out of hand. The 'command theory' captures well the extensive coerciveness of many systems of law and the importance of power to the maintenance of the state.(4) Answer clearly states that modern jurisprudence plays down the role of sanctions in legal theory, although sanctions are considered by Raz and others to be important but subsidiary reasons for compliance to the law. It is the law's claim to moral authority, not sanctions, that explains why law binds persons according to Raz. Frederick Schauer inan article in Ratio Juris (March 2010) entitled 'Was Austin right after all? On the role of sanctions in a theory of law', comments that it may be Austin rather than his critic Hart that is nearer to the truth of modern legal systems,
the experience of modern complex legal systems may indeed be more coercive than the tone of Hart's criticism suggests. It is true that there exists the largely non-coercive and non-sanction based realm of contract, wills, trust and much of private ordering . . . . But just as the possibilities of private ordering have increased, so have the forms of state regulation, and arguably even more so. Tax laws are more complex and more intrusive, and the modern regulatory state controls numerous aspects of what would earlier have been thought of as unregulated, whether in the area of labour and employment, workplace safety, consumer transactions . . . the complexity of the modern world has made Austin's focus on a vertical relationship between authority and subject, and on a legal regime that seems most of all to be coercive, to be more rather than less empirically accurate.
Indeed, it is Austin's focus on the coerciveness of law, rather than Hart's emphasis on the non-coercive aspects of law, that seems to fit modern legal systems better. If jurisprudence aims to be descriptive of the actual social reality of law, then law's coercive dimension, so well captured in the 'command theory', needs to be emphasised. The law's coercive dimension is not only how vast numbers of persons across the world see and experience the law but also, in the real explanation, why people, including many legal officials, actually obey the law.(5) Answer clearly states that coercion (sanctions) may have a more important role in modern legal systems than Hart allowed for in The Concept of Law. Law's coerciveness is how many people view the law. In stressing the coercive aspect of law, the 'command theory' seems more in tune with the modern world of 2010 than Hart's stress on the non-coercive aspects of law in the relatively crime-free and relatively unregulated social world of 1961 England when he wrote The Concept of Law.
The 'command theory' of law is also in tune with modern legal reality in the command theory's stress on legislation as the primary legal source.(6) Answer clearly states that the 'command theory' is in tune with the great tendency of modern law to be statute based with the common law very much taking a second place. Bentham famously argued for the removal of the judicial power to make law through the common law and the extensive codification of English law. Austin with a cooler realism than Bentham, recognised the need for judge-made law but argued for more extensive codification of law. The law of England has become much more statute based since the deaths of Bentham and Austin in the nineteenth century and, to that extent, the law of England at present fits more with the 'command' model of law issuing from a sovereign power than when Bentham started writing in the late eighteenth century, when common law was a much more dominant source of law in England than it is now.
Perhaps the greatest legacy of the 'command theory' of Austin and Bentham is in an 'attitude' or 'approach' to law as a social phenomenon, which has been followed by later theorists, such as Professor Hart, even if he has rejected the 'command theory' in favour of his own model of law as 'a system of institutionalised rules.' While Austin and Bentham refused to romanticise law and legal systems, but rather analysed them in 'scientific', morally neutral terms, Professor Hart, in The Concept of Law, followed the methodology of the command theorists, even if he discarded the actual 'command theory.' Professor Hart commented in Essays on Bentham (1982) on Bentham's approach to the study of law as a social institution, 'this calculatedly neutral approach to definition of legal and social phenomena: his insistence on a precise and so far as possible a morally neutral vocabulary for use in the discussion of law and politics'.
Hart terms this approach of Bentham to the analysis of law the 'sane and healthy' heart of the legal positivistic tradition, a refusal to romanticise and idealise the institution of law.(7) Answer clearly states that Bentham influenced later theorists, such as Hart in The Concept of Law (1961), by examining law with a cool detachment and refusing to romanticise or idealise law as a social institution. Before Bentham, Sir William Blackstone had idealised and romanticised English common law in his Commentaries on the Laws of England (1765), which had linked the common law of England with divine law. After Hart, Professor Finnis, in Natural Law and Natural Rights (1980), had idealised law by defining the 'central case' of law with an ordering of reason for the common good. Austin and Bentham founded a tradition of legal thought with regard to law, which was realistic and unromantic in outlook: examining law in social-scientific terms. It is to this tradition of Benthamite thought towards law: realistic and unromantic in outlook, that Professor Hart followed in The Concept of Law, even if he rejected the actual 'command theory' of law as an adequate explanation of the social institution called 'law'.
'The 'command theory' of law produced by Bentham and Austin has been widely criticized. Is there anything to be said in favour of the 'command theory'?'
The 'command theory' was invented by Bentham and Austin.(1) Wrong statement. The 'command theory' was not 'invented' by Bentham and Austin. The 'command theory' of law can be traced back to Thomas Hobbes in the seventeenth century with his great work on political philosophy, Leviathan (1651). The 'command theory' is a theory concerning legislation (statute law) and does not allow for common law.(2) Wrong statement. Although Bentham was rigorously hostile to the common law, Austin allowed for judge-made law on the basis that if the judge-made law was not repealed by the sovereign it became the 'tacit' commands of the sovereign. The 'command theory' identifies law as issuing from a sovereign but Austin and Bentham gave no clue or guide as to how the sovereign was to be identified and so their theory is unworkable.(3) Wrong statement. The 'command theory' of Bentham and Austin gave a clear method for identifying the sovereign in a society – look at 'habits of obedience' in that society and ask who is 'habitually obeyed' by the population and whether that person or body is not in the habit of obeying anyone else. The 'command theory' identifies coercion (force) as the key to jurisprudence – the understanding of law, and the vast majority of modern legal theorists would agree that coercion is the key to understanding law and how it binds people.(4) Wrong statement. Legal theorists today would generally give sanctions a relatively minor part in the explanation of the nature of law.
Austin and Bentham did not have a clear view of what the law should be but merely described the law in simplistic terms.(5) Wrong statement. Both Austin and Bentham had clear views on what the law should be and how a legal system should operate. Austin's theory of law is considered today to be more complex than Bentham’s.(6) Wrong statement. The current jurisprudential trend is to acknowledge that Bentham's theory of law was more profound than Austin's derivative version. Bentham stole a lot of his ideas on legal theory from Austin. The 'command theory' does not take into account the fact that not all laws are like commands, not all laws are like the criminal law. Some laws are permissive, allowing people to make contracts, marriages and wills. Austin and Bentham did not allow for the fact that not all laws are 'commands'.(7) Wrong statement. Bentham certainly described in his legal theory the different types of laws in a legal system.
Austin and Bentham only meant their 'command theory' to apply to England.(8) Wrong statement. The 'command theory' was meant to be applied to the examining of any mature legal system.
One of the strongest points of the command theory is that it introduced the idea that law is identified by factual tests only – what Professor Hart calls the ‘sources thesis'. This is the view that all law is source based; that is, that law can be identified as emanating from various sources, for example, Parliament or the Supreme Court. How do Austin and Bentham make law dependent on social facts alone when law is the command of the sovereign and only the command of the sovereign?(9) Good point. The essay clearly identifies the fact that the command theory makes the identification of law dependent on factual tests: 'what has the sovereign commanded?'
The coercive aspect of law is stressed by the command theory and indeed for most citizens images of the law conjures up 'prisons, police and courts'. Perhaps coercion (force) is the defining mark of law and, therefore, there is no real difference between the demands of gangsters and the demands of the legal system whether it be the legal systems of Zimbabwe, North Korea or the United Kingdom.(10) Wrong statement. Although the essay is right to say that coercion (sanctions) is important to modern law, it is absurd to compare the rule of law governed legal system of the United Kingdom with the dictatorships of Zimbabwe and North Korea.
The command theory because it was written a long time ago is now out of date and is of no relevance to today's legal systems. The command theory might fit a medieval monarchy, where the King is absolute ruler, but cannot fit a modern democracy.
Because the 'command theory' was torn apart by Professor Hart in The Concept of Law, we need not bother studying it closely.
In conclusion, the command theory is old-fashioned, with nothing to say of relevance to today's legal system. The command theory should be considered as belonging to the dustbin of legal theory. We should only be studying legal theory by legal authors who are alive and aware of what is going on today.
Chapter 1 The nature of jurisprudence
- Definitions of jurisprudence
- Key jurisprudential questions: what is the law/what constitutes good law
- Austin's division between analytical and normative jurisprudence
- Other subdivisions of jurisprudence
- The terminology of jurisprudence
- Formalist and contents approaches to moral philosophy
- Hart's definitions of positivism
- Branches of utilitarianism
- General questions arising from jurisprudence's two key questions
Chapter 2 Natural law theory
- What is natural law?
- Sources of the higher principles reflected in law
- Key tenets of natural law theory
- The development of natural law theory throughout the ages
- Aquinas' integration of the rationalist and religious approaches to natural law
- JM Finnis' modern natural law theory
- Practical reasonableness and the objective goods
- How is the 'ought' derived from the 'is' for Finnis?
- The Principle of Generic Consistency
- Main criticisms of natural law theory
Chapter 3 Positivist theories of law
- What is the positivist approach to law?
- The 'is' and 'ought' questions in legal positivism
- Devices used to identify law
- Imperative theories of law
- Bentham's approach to law
- The distinction between expositional and censorial jurisprudence
- What is good law for Bentham?
- Austin's command theory of law
- Elements of the statement "law is the command of a sovereign backed by sanctions"
- Hart's criticism of Austin
- Kelsen's pure theory of law
- Kelsen's distinction between primary and secondary norms
- Kelsen's distinction between subjective/objective meanings of actions
- The hierarchy of norms/concept of the basic norm
- Criticisms applicable to imperative theories
Chapter 4 Theoretical alternatives to the command models of law
- Hart on coercion, rules and morality
- Distinction between obedience and compliance
- Hart's definition of a 'rule'
- Primary and secondary rules
- The systemic quality of law
- Rule of recognition/rules of change/rules of adjudication
- The "internal morality of law" according to Fuller
- Fuller's eight rules of proper law-making
- The Hart-Fuller debate
- Hart's criticisms of Fuller's "inner morality of law"
- Dworkin's criticisms of natural law and legal positivism
- Dworkin's criticism of Hart
- The difference between rules and principles for Dworkin
- Dworkin and judicial discretion
Chapter 5 Utilitarianism
- Bentham's utilitarianism: key elements
- The principle of utility
- The felicific calculus
- The science of legislation/the art of legislation
- The Panopticon
- Criticisms of Bentham's utilitarianism
- J.S. Mill and qualitative altruism
- The place of justice in Mill's work
- The role of liberty in utilitarian theory
- Utilitarianism and the economic analysis of law
- Posner's economics of justice
Chapter 6 Rights
- Hohfeld's four categories of basic rights
- Jural opposites/jural correlatives/jural contradictories
- Rawls and justice as fairness
- Rawls' criticism of utilitarianism
- The original position and veil of ignorance
- Rawls' two principles of justice
- Nozick's theory of entitlements
- Dworkin's rights thesis
- Dworkin's principles and policies
- Dworkin's rights as 'trumps'
Chapter 7 Theories of law and society
- Difference between sociological jurisprudence, sociology of law and socio-legal studies
- Central assumptions of sociological jurisprudence
- Weber's three ideal stages of development
- Durkheim and social solidarity
- What is functionalism?
- What are socio-legal studies?
- Sociology of law
- Unger's three types of law
- Marx's six stages of development
- Historical/dialectical materialism
- Marxism today
Chapter 8 Feminist legal theory
- Feminism as political activism
- The equality/difference debate
- The public/private divide
- Feminism and power
- The feminist challenge to the reasonable man test
- The question of freedom
- How does feminist legal theory relate to legal practice?
- Feminism and political philosophy
- Key figures in feminist theory
Chapter 9 Critical legal studies
- What are critical legal studies?
- In what way do they differ from more traditional critiques of the law?
- The history of the CLS movement
- The claims and objectives of the American crits
- The decline of American CLS
- Freud's parallel between law and the law of the unconscious
- The Freudian myth of the origin of the law
- Lacan's inversion of the Freudian premise
- Foucault and the genealogical method
- CLS and deconstruction
Click on the glossary term to see the definition
- Analytic jurisprudence
- Analytic jurisprudence is one of two main branches of jurisprudence. It involves the scientific analysis of legal structures and concepts and the empirical discovery of the basic elements constituting law in specific legal systems. For analytic jurisprudence the question to be answered is 'what is the law?'.
- This is the position according to which sentences used in a given discourse are cognitive, that is, are meaningful and capable of being true or false – for example, "grass is green" is a true proposition. In the area of jurisprudence, it refers to the view that it is possible to know the absolute truth about things – for example, what constitutes truth about justice. Thus in the cognitivist approach the sentence "it is always wrong to kill another human being" can be true or false.
- Some value or interest which it is generally considered desirable to attain or provide for in social arrangements, for example, liberty, equality or dignity.
- Intuition is the immediate apprehension of an object by the mind without the intervention of any reasoning process. Intuitionism refers to the view in moral philosophy according to which humans possess a faculty, conscience, by which they are able directly to discover and determine what is morally right or wrong, good or evil.
- A term used to define approaches to legal and social arrangements which generally give priority to the concept of liberty, or the specification, attainment and protection of particular basic freedoms.
- The making, holding or expression of moral judgments, that is, conceptions of what is good and bad, right and wrong or acceptable and unacceptable as judged in accordance with some a priori standard which may be a personal or social convention.
- Moral philosophy
- The formalised attempt to understand the thinking underlying or reinforcing moral judgments.
- Normative jurisprudence
- Normative jurisprudence refers to the evaluation of legal rules and legal structures on the basis of some standard of perfection and the specification of criteria for what constitutes 'good' law. This involves questions of what the law ought to be.
- Connection thesis
- This phrase refers to the idea held by the proponent of normative jurisprudence theories according to which law needs to have a moral content in order to be valid law. The opposite view, or 'separation' thesis, is held by legal positivists, for whom law is valid irrespective of its contents provided it has been posited by people in rightful positions of power.
- Separation thesis
- see connection thesis
- Natural Law
- The philosophy of law which proceeds from an assumption that law is a social necessity based on the moral perceptions of rational persons and that any law which violates certain moral codes is not valid at all. Human law is thus based on certain universal principles, discoverable through reason or revelation, which are seen as being eternal, immutable, and ultimately based on the nature of human beings.
- Principle of Generic Consistency
- A supreme moral principle which is logically derivable from the nature and structure of human agency. The principle states that every agent must act in accordance with his or her own and all other agents' generic rights to freedom and well-being.
- The view that everything has an ultimate end or purpose towards which it will inevitably develop. Classical Natural Law theorists would argue, for example, that humans and their society have as an end some ultimate state of perfection, to which they must naturally approximate and towards which they must necessarily strive, and that law is an essential device for precipitating this end (from the Greek telos, meaning end, purpose).
- Effectiveness and efficiency, as in the capacity of a certain measure, structure or process to achieve a particular, desired result.
- The adjective imperative in jurisprudence refers to theoretical approaches to the nature of law, more specifically to the conception which regards law as being constituted generally by the commands, orders or coercive actions of a specific, powerful person or body of persons in society.
- A generally accepted standard of social behaviour. Note that Hans Kelsen uses the term in his definition of law as 'the primary norm that stipulates the sanction' to refer specifically to 'a conditional directive given to officials to apply sanctions under certain circumstances'.
- For Herbert Hart, a distinction must be made between 'being obliged' to act or forbear, and being 'under an obligation' to act or forbear, the former being motivated by fear of some sanction which occurs as an external stimulus and the latter being comprised of both the external element and an internal element whereby the subject feels a sense of duty to act or forebear.
- The approach to the study of law which considers the only valid laws to be those laws that have been 'posited', that is, created and put forward by human beings in positions of power in society. Generally, positivism rejects the attempt of Natural Law theory to link law to morality (see connection thesis).
- The formal consequence (usually negative or harmful) which is directed at, and normally follows from a specific act of a particular person or persons, where that act is regarded by society or some specific organ of society, for example, the State, as being a requisite condition for the consequence and a justification for the exertion by society or the State of some of its legitimate power against the person or persons.
- In judicial decision-making, the supposition that judges, in making decisions in 'hard cases' – that is, cases where there is no clear rule of law which is applicable or where there is an irresolvable conflict of applicable rules – make decisions which are based on their own personal and individual conceptions of right and wrong, or what is best in terms of public policy or social interest, and that in so deciding they are exercising a quasi-legislative function and creating new law.
- In legal philosophy, an approach to legal theory which rejects all judgments of value and regards only those statements which can be objectively verifiable as being true propositions about the nature of law. Legal empiricism is based upon an inductive process of reasoning, requiring the empirical observation of facts and the formulation of a hypothesis which is then applied to the facts, before an explanatory theory of legal phenomena can be postulated.
- In legal theory, the approach which seeks to minimise the element of choice in the interpretation of terms contained in legal rules and emphasises the necessity of certainty and predictability in the meaning of such rules. Legal formalists would advocate the attribution of specific meanings to certain terms from which the interpreter of a legal rule could not deviate, and require that such terms should have those same meanings in every case where the rule is applicable.
- The philosophical approach which emphasises objectivity over sentiment and idealism in the investigation of phenomena. Realists generally argue that the perception of phenomena is an experience of objective things which are independent of the private –sense-data that we may initially hold. A meaningful analysis of the nature of law must therefore concentrate on the objective experience of the actual practice of the courts, rather than on some 'rules' which are supposed to guide the attitudes of judicial officials.
- A statement formally specifying a required mode or standard of behaviour.
- Felicific calculus
- Calculation used by utilitarian thought to weight the pleasure provided to most against the pain caused to some as the basis for legislation.
- Harm principle
- A principle formulated by J. S. Mill according to which "the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not sufficient warrant. He cannot rightfully be compelled to do or forbear because it will be better for him to do so, because it will make him happier, because, in the opinion of others, to do so would be wise, or even right... The only part of the conduct of anyone, for which he is amenable to society, is that which concerns others. In the part which merely concerns himself, his independence is, of right, absolute. Over himself, over his own body and mind, the individual is sovereign."
- Institutional design aiming to maximise possibilities for the surveillance of inmates.
- Principle of utility
- Objective standard to measure what a good law is, bearing in mind that utility refers to the quality of an object or an action to produce a benefit and/or reduce pain.
- The approach of moral philosophy which regards an act, measure or social or legal arrangement as being good or just if its overall effect is to advance the happiness or general welfare of the majority of persons in society. Utilitarianism is a goal-based approach to the problems of justice in the distribution of the benefits and burdens of society, in that it gives precedence to the advancement of the collective good or welfare, even if this may involve extinguishing or curtailing the rights and political or other liberties of the individual.
- Total (classical) utilitarianism
- where social and legal measures or institutions are regarded as just if their operation, on the whole, serves to maximise aggregate happiness or welfare.
- Average utilitarianism
- where social and legal measures or institutions are regarded as just if their operation, on the whole, serves to maximise average happiness or welfare per capita.
- Act utilitarianism
- where a specific act or measure is regarded as right if it will on the whole, have the best consequences.
- Actual Rule utilitarianism
- where an act or measure is regarded as right if it is permitted by a rule which, if generally followed, will on the whole have the best consequences.
- Ideal Rule utilitarianism
- where an act or measure is regarded as being right if it is permitted by a rule which, if generally followed, will on the whole have as good or better consequences than any other rule governing the same act.
- Affirmative action
- This term refers to policies that take race, ethnicity, or gender into consideration in an attempt to promote equal opportunity or increase ethnic or other forms of diversity.
- This applies to assertions or assumptions that human society is based upon a social contract, whether that contract is seen as a genuine historical fact, or whether it is hypothesised as a logical presumption for the establishment and maintenance of the ties of social civility.
- A statement of a social or community goal aimed at some improvement of the social, economic or political welfare of the members of the group in general. As such, a policy may be pursued sometimes even though this would lead to a restriction of the rights of individuals.
- As opposed to a policy, a statement or proposition which describes the rights which individuals may hold apart from those which are specified in the legal rules of a community.
- Reverse discrimination
- This term refers to discrimination against members of a majority group in order to promote members of a minority or consistently disadvantaged group.
- Dialectic is a debating method first used by Greek philosophers. It instrumentalises contradiction, or the exchange of arguments and counter-arguments respectively advocating propositions (theses) and counter-propositions (antitheses). At its most simplistic, the dialectical operation can be set out in this form: a thesis, which is an existing or established idea, is challenged by an antithesis, which is an opposite and contradictory idea. The outcome of the ensuing struggle between the thesis and the antithesis is a union and inter¬penetration of the two opposites, which constitutes the synthesis: a newer and higher form of idea, which contains qualitatively superior elements pertaining to the two opposites. The new synthesis, however, will inevitably be challenged by another, newer and opposite idea, and so the synthesis becomes the new thesis, with its antithesis being the new opposite. The continual repetition of this cycle of struggle and resolution constitutes the dialectic and results in development and change in all things.
- For functionalism, societies are systems made up of interrelated parts which combine to fulfil the functions necessary for the survival of society as a whole. A functionalist interpretation of the law will therefore focus its analysis on the social functions fulfilled by law.
- In Marxist theory, the notion that changes and developments in human society are based on the material conditions of human existence. The two notions of dialectical materialism and historical materialism in Marxist theory are based on the assumption that there are ongoing associations and contra¬dictions between various social, technical, economic and political phenomena which determine the historical development of society.
- Dialectical materialism
- refers to the idea that contradictions in the material base of society and their inevitable resolution through transition to a newer and 'higher' mode of production with different economic relations of production are the driving force of society's development.
- Historical materialism
- is the methodological approach to the study of society, economics, and history which was first articulated by Marx. The fundamental proposition of historical materialism can be summed up in a sentence: "it is not the consciousness of men that determines their existence, but, on the contrary, their social existence that determines their consciousness." (Marx, in the Preface to A Contribution to the Critique of Political Economy.) Historical materialism looks for the causes of developments and changes in human societies in the way in which humans collectively make the means to live, thus giving an emphasis, through economic analysis, to everything that co-exists with the economic base of society (e.g. social classes, political structures, ideologies).
- The ability to use one's reason or mental faculties generally to evaluate alternative courses of action, to make choices in terms of one's preferences, to set goals and to formulate efficient plans for the attainment of such goals.
- Socio-legal studies
- This approach is practical and is concerned with making better laws that work better and approximate to some ideal of justice, not with interpreting law as a social fact.
- Sociological jurisprudence
- This discipline studies society in order to identify the factors which determine the nature of law.
- Sociology of law
- This approach seeks to explain society through an investigation of law as a form of social control.
- Feminism is a political discourse seeking to obtain equal rights for men and women, and the same degree of legal protection.
- This term refers to the structuring of families units around the figure of the father where the father is endowed with primary authority over other family members. By extension, patriarchy refers to a model of social organisation in which men take primary responsibility for all functions of authority. In such models men are the dominant figures in all fields of decision-making: social, economic, political, legal.
- Critical Legal Studies
- In the narrow sense, CLS is a movement which originated in the US in the 1970s and is now more or less defunct. In the broad sense, CLS encompass a plurality of different critical perspectives on law which have been flourishing for over twenty years. All CLS perspectives share a wish to critique the traditional notions of legal objectivity and supposed neutrality of the law in order to reveal law as a murkier, much more morally ambivalent area than is usually acknowledged in classic legal discourse. What distinguishes CLS from more straightforwardly critical takes on law is that its many approaches import insights, concepts and methods devised by other disciplines such as aesthetics, literary criticism, psychoanalysis and philosophy into the critical study of the law.
- The deconstructive method is that of a close reading of text aiming to reveal the hidden or repressed meanings of an author by reintroducing less evident meanings of the terms used by the author.
- This is a way of writing history which aims to show that developments which appear unavoidable from our vantage point (such as the prison, or CCTV) were in fact contingent and not at all inevitable.
- Social constructionism
- A sociological theory of knowledge which considers how social phenomena develop in particular social contexts. A social construct, even though it may seem self-evident to the participants of a given society, is in fact the invention of that society.
- The term refers to various theories across the humanities and social sciences which share the assumption that structural relationships between concepts vary between different cultures/languages and that these relationships can be usefully exposed and explored. The main idea of structuralism is that the elements of a given structure only make sense in relation to each other.
- is a reaction to structuralism, acknowledging the impossibility of fully representing the whole of reality through symbolic structures such as law and language.