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REASON AND THE CRITICISM OF LEGAL THEORY* Philip Milton** The purpose of this paper is to consider the problems of the appraisal oflegal theories. I Questions of the evaluation and choice of theories have long attracted the attention of philosophers ofscience, and this paper will make use of some contemporary work in this area, particularly that of Imre Lakatos. However, I shall not be arguing that legal theory, or any particular theory of law, is (or is not) scientific. Such disputes are largely verbal and unproductive. But behind every verbal dispute there is a real one, and in this case it concerns the nature and purpose oflegal theory. If someone were to ask what that is, he may well be told that it is to discover the nature oflaw. Many legal theorists may object to this, saying that it is vague and (what is far worse) tainted with metaphysics, essentialism or some other philosophical vice. Some will tell us that their task is to provide a definition of law, others to develop a science of law, others to elucidate the concept oflaw; while some may remain prudently silent and, if asked, will deny that legal theory has any general aim at all. These various formulae, though having a vague similarity, are by no means equivalent, and they correspond to differing conceptions of the aims, and even the methods, of legal theory. Is legal theory a branch of philosophy or does it aim to be a science? If it is a science does it have its own peculiar method or should it be modelled on some other science? Should the legal theorist look for assistance from historians, moral philosophers, anthropologists and sociologists or should he construct a pure theory without their help? As a science is legal theory embryonic, stillborn or really, considering the circumstances, doing quite well? Can a legal theory be demonstrated or are all arguments merely plausible or persuasive? Are there any grounds for preferring one theory to another? In recent years talk about theory has increasingly spread from the sciences to the humanities, so that even teachers of literature talk learnedly and impenetrably about theories, and lectureships are offered in such hitherto unknown subjects as 'film theory'. Jurisprudence has not escaped this trend, and all sorts of contributions are now called theories; though, as this "This i:'l ~ revised version of a peper delivered on 13 April 19RO at the Association fi)r Legal and Social Philo"'ili'lH" { :::lIl1eft"UI,:e held at Liverpool Polytechnic. ul..t'cturer in Law, University of Leicester. I

Throughout this paper 1 have restricted discussion to what might be called analytical or philosophical theories. This is not 10

pre-judge the merits

analytical theory.

oran)' other theory.

(11

10

claim spec-ial st.uus eirher fur analytical rurisprudcnce or Ii,. :my partu-ular

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conceptual currency is debased by inflation, there has been something of a tendency among the auant-garde to talk about 'models' and (following Kuhn) 'paradigms". This proliferation of theories may be illustrated by a passage from the introduction of Dworkin's Talking Rights Seriously where in less than half a page he refers to theories of legislation, legitimacy, legislative justice, adjudication, controversy, jurisdiction, compliance, deference and enforcement.' This enthusiasm for classification reminds one of Bentham, but (unlike Dworkin) Bentham has no liking for talk about theory; he rarely uses the term and (as far as I can discover) never described any ideas, even his own, as a theory of law. The same is true of Austin. Mill does use the expression - it can be found in the 1833 and 1838 essays on Bentham and in the 1863 review of Austin's Jurisprudence - but it has for him no technical meaning and he uses it on only a few occasions. In Ancient Law (1861) Maine refers on several occasions to 'the theory of natural law' but never described Austin's system as a theory, preferring to call it an 'analysis of the conception of law'. This, if not a mystery, is at least a puzzle: why is theory such a newcomer? Why did Bentham and Austin refrain from calling their systems 'theories of law'? Later in the paper I shall suggest a reason for this. Nowadays the term 'legal theory' is used in a range of senses, of which I shall distinguish three: (1) At the most general level it refers to the enterprise of theorising about law. Legal theory is opposed to legal practice and legal theoretical problems are the sort that are not (directly) raised in court. (This is not to say that legal theory is irrelevant to legal practice but rather that its relevance is of the long run.) (2) At the intermediate level it refers to certain general movements such as legal positivism, legal realism and the 'natural law theory'. (3) At the most specific level it is used to denote particular theories, such as those of Bentham, Austin, Kelsen and Hart. It seems useful to distinguish between the second and third types of legal theory, so I shall call the former 'programmes', reserving 'theory' for the latter. Hence we may describe Hart's theory as part of the positivist 2 The word 'raradi~m' hu derived much of it!I popularity from the great influence of 1'1f~ S,ru;trlr~ of Scit1f/,!icRroollll;',"f, and has suffered from conceptual inflation. A moratorium on ill' usc might be desirable. On Kuhn's original employment of it, see T. S. Kuhn. Tht S,,.,,rrurt (If s<,t7rt1!;( Rronlu(;onJ. 2nd ed. Chicago, University of Chicago Pres.", pani",_ and for further reflections see 'Second Thoughts on P:lradigm~' in T. S. Kuhn, TIl' Essential Ttns;,,", Chicago. University of O1ical!:o Pres.", 1977, 29l-319. The question orlh~ applicability to legal theory of Kuhn's fascinating ideOIS lies outside the scope of this paper. 11is however wonh mentioning that there is nothing in Icltal theory that corresponds to normal science. Hence if Kuhn's theory is applicable then legal theory seems to be at the pre-paradigm stage. One interesting mint is that there are several parallels such as the role of textbooks in educcauon and the ccncemraricn on puzzle solving - between normal science (as Kuhn conceives if) and current 'black letter' legal education. 1 Ronald Dworkin, TdJti", RI~JrtJ S~nolls(v, London, Duckworth. 1977. vii-viii. c-

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programme. Kelsen's Pure Theory is a particular version - as it happens the only version - of the more general programme of creating a pure theory of law. This programme is a particular version of the positivist programme; and a critic of Kelsen should distinguish between criticism aimed at the Pure Theory, at the pure theory programme and at the positivist programme. In Britain legal positivism seems to have been the result of the confluence of two philosophical traditions. The nominalist-voluntarist tradition, which began in the fourteenth centry and found its greatest representative in Hobbes, provided the imperative analysis of law, with its emphasis on will, command, sovereignty and sanction. The utilitarian tradition contributed a theory of ethics in which the notions of natural law and natural rights had no place; rights were merely conventional, adopted for reasons of general utility, and justice was an artificial virtue. For Bentham the only rights were positive ones, created by positive law. In a tract entitled Securities Against Misrule Adapted to a Mohammedan State he states: To any such word as right, no other conception can ever be attached but through the medium of a law or something to which the force of a law is given:'from a real law comes a real right; from an imagined law nothing more substantial can come than a correspondently imagined right." Legal positivism inherits from these two traditions a positive thesis concerning the nature of law and a negative ethical thesis that denies the existence of natural law and natural rights. Though these theses are often held together they are logically distinct. Natural law, once a mere synonym for morality, has come to be a name for a number of ethical theories that have little in common beyond the fact that they are all anti-utilitarian and cognitivist. As natural law is an ethical theory the positivists criticise it 00 ethical grounds; Bentham and Austin do so as utilitarians, Kelsen as a noncognitivist. One of the most characteristic of all positivist doctrines is that asserting the conceptual separation oflaw and morality. At the practical level this is usually interpreted as meaning that the validity of laws is independent of their moral content; so that a bad law is just as much a law as a good one. The doctrine also has the consequence at the theoretical level that there is an equivalent separation between theories oflaw as it is and theories ofIaw as it ought to be. Each type of the theory must be justified separately: the positivist cannot argue from utilitarianism, emotivism (or any other ethical theory) to any theory of positive law - or vice-versa. It is for this reason that the positive and negative theses oflegal positivism are logically distinct and can be examined .t John Bowring (ed.), The WorkS of Jeremy Bentham, Edinburgh, William Tair , 18-0. Vol. VII p. 557

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separately. For the remainder of this paper I shall confine the discussion to the positive thesis which is concerned solely with the nature of positive law. There is probably no definition of positivism that will give equal satisfaction to all parties. Contemporary positivists are inclined to see positivism as a social fact theory which explains the existence oflegal rules, rights, duties and so on in terms of social practices. Though true as a description, this would be an unsatisfactory definition, as many non-positivist theories would also seem to explain legal practices in such terms. It seems better to search for what it is that is distinctive about positivism, what it is that positivists would assert and their opponents deny. At the risk of objections from some positivists, I would suggest the following:" (1) Every legal system has a formal structure that is independent of the moral or political content of the law. (2) All legal systems, whatever their variations in moral or political content, share the same formal structure. (3) Every legal system is a system of individual laws which themselves are, or are composed of, commands, imperatives, norms or rules. (4) For every legal system there exists a criterion, or set of ranked criteria, which determines the validity of the commands, imperatives, norms, or rules of the system. The second of these theses is held in strong and weak versions. According to the strong version all legal systems share the same formal structure, and thus, any system that does not is not really a legal system at all, despite any appearances to the contrary. Austin's demotion of international law to the status of positive morality is in example." The presence (or absence) of the common structure provides a demarcation criterion between the legal and the non-legal. Weaker versions - such as Hart's - see the structure as a standard case that is characteristic of the municipal legal systems but only partially present in such deviant cases as international law and the legal systems of primitive societies.' One consequence is that the adoption of a weaker version precludes any sharp demarcation between the legal and the non-legal. The 'second thesis lies at the heart of legal positivism, since the creation of a ')

6

This analysis of posinvisrn borrows considerably from others. in partjculur Ronald Dworkin (II'. cit, JrlPfiJ 1/11(( 3 III /7 and A. 'X', R. Simpson 'The Common LlV. and Legal Theory in OX."'rJ Essuvs ill ]llr;spmJ(IIU (second series), ted. Simpson). Oxford L'niversitv Press 197,.80 fl. Austin's rckction' of rhe le~:J1 nature of inrernanonul law is reflected in the index to the Lectures mt ]uris/,ruJt·I/a'. where the reader. looking for the entry on International Law finds "International 1.0:1\\', (See Pe,,,,it,(' !mt:r1ll.lt;f11IlJI Mllrl.1li,y)'. For Ausrin\. view. thoU intcrrunionul law i~ 'u law improperly so called' see [,fmm's 1111 ]lInsrruJt""'{', -tth ed. London. John Murr;.I\' IS71. Leer. v tar-a. In Tit(: Cmt't'rt l'f l.tJtf Han states that purpose of the book 'i'i not III provide a definition of LJw. in the sense of a rule bv reference 10 which the .... orrecmess of the lISC of the word can be tested: it IS to advance l('~al theory hy providing an improved analysi~ (If the distinctive structure 01" a municipal h:~JI system , ... TIft' C%'(/" vi Lat-, Oxford, Clarendon Press, IQ61. 17.

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general theory oflegal structure depends upon its truth. Weaker versions may simply assert that, as a matter of contingent fact, most (or even all) legal systems do possess a common formal structure. This, it is worth mentioning, requires that we have some independent test for identifying legal systems. Stronger versions are inclined to prefer some more secure a priori guarantee. I shall be describing these four theses as forming the hard core of the positivist programme. Given the use of this Lakatosian terminology, something must be said about Lakatos's Methodology of Scientific Research Programmes, as described in his 1970 paper 'Falsificationism and the Methodology of Scientific Research Programmes'." For Lakatos the starting point was the problem of reconciling an essentially falsificationist account of science with the fact that scientists may rationally adhere to theories even in the face of counter evidence. His solution was to shift the unit ofscientific appraisal from an isolated theory to a series of theories. The series of theories is part of a research programme which is characterised by (i) a hard core, treated as irrefutable by methodological decision of its proponents, (ii) a negative heuristic which diverts criticism from the hard core to (iii) the protective belt of auxiliary hypotheses. Lastly there is (iv) the positive heuristic which sets out the long-term research policy of the programme." Does, this have any application to legal theory, jurisprudence, or indeed anything outside the natural sciences? Although Lakatos chose his examples from physics, astonomy and (to a lesser degree) chemistry, he seems to have regarded his methodology as having wider application. In a footnote to his 1971 paper 'History of Science and its Rational Reconstructions' he wrote: Let me point out here that the methodology of research programmes may be applied not only to norm-impregnated historical knowledge but to any normative knowledge, even including ethics and aesthetics." Lakatos would, it seems, have regarded his methodology as applicable to legal theory. In this paper I shall dispense with the protective belt and its accompanying negative heuristic. This is because - as will be argued later - legal theories are already largely immune from falsification. I shall however retain the ideas 8

Lakaro'w philosophical papers han: been published in a collected edition: The J1c'''.'J"Ii~~.'' of St"/t'Jlfifil" Research PI"lJ~nJmll/(,s (Vol. 1) and .\frJlltrll/l1rio. Science and EpiswlII '/ngy (\'01. 2). both Camhridee L'nivcrvirv Prcs-, 197fl. :\11 references ore 10 (his edition. For :m excellent discussion of the Lakutosiun research programme see AI:m ,\\us~r;m:. '.\\cthod of .\\Jdncs... ~· in R. S. Cohen, P. K. Feverabend and M. \'('. Warlofsh (vds.). EHrJ\'I ill .UcmMv of lmr,' I.l1kl1f,'.,", Dordn..-cht , O. Rc:iJd lin"" -1')7--192. See abo'Lm Hacking. "lmre Lakatov's Philo~(lphy of'Sciencl' ,10 Rri;i~h .71'l/nllJI for the Philosophy of Science, 197'J, ~141~

9 ibid. Vol. I. ,..t. -l7 fT. 10 ibid. Vol. I. 133n.

-

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of a programme and its hard core. The effect of these changes is to shift the methodology even further in the direction of conventionalism. It is entirely natural to talk about programmes in areas outside the natural sciences. The Frege-Russelliogicist programme is an example. In his 1962 paper 'Infinite Regress and the Foundations of Mathematics' - his first publication in English - Lakatos refers to the Euclidean, empiricist and inductivist programmes. I I Hence it seems reasonable to call legal positivism a programme, and I have suggested the four above theses form its hard core. Different positivists work out the details in different ways: for Austin laws are commands, for Kelsen sanction stipulating norms, for Hart primary and secondary rules. Disputes between these jurists are disputes within the positivist camp. Disagreements concern not the hard core but the theory that is constructed around it. If a critic of positivism attacks a particular theory then at most he stands to gain a partial victory. He may succeed in discrediting a particular theory but this leaves open the possibility that a new version may be devised nor open to the critic's objection. Though the critic may have won a battle rather than the war itself he has not been wasting his time. If he goes on to discredit all the theories developed within the positivist programme then he can reasonably feel he has succeeded. A programme must produce developed theories worked out in detail, otherwise it is empty. A programme that produces bad theories or no theories at all is rightly disregarded. A critic may decide that it simpler to attack the hard core. With this discredited, the theories will collapse like a building whose foundations have been undermined. The problem with this approach lies in the nature of the hard core. In the early versions of a programme the hard core may be sufficiently specific and definite to be testable. For the early versions of positivism part of the hard core would have been that all laws were commands. Under criticism the hard core is reformulated to include norms, rules, directives, quasi-commands, independent imperatives and so on. As the hard core becomes more vague, criticism by counterexample becomes more difficult. Dworkin's criticism illustrates the point: he sees a case like Riggs v Palmer as providing a counterexample to the rules thesis. The positivists disagree; for them such cases can be explained in terms of rules and there is no need to postulate logically distinct principles. A kind of stalemate is reached with neither side convincing the other. As the hard core becomes more general, more elastic and more vague, as it tends to become irrefutable, it may be objected that it loses its content and becomes vacuous. What happens here is that the hard core goes soft and the II

IbId., Vol. 2. 4 fT.

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programme breaks up. As the hard core loses its content it does not follow that the theories lose theirs. What will happen is that they become increasingly diverse. A variant is that under criticism the programme splits. Some regard the failure of the theories as indicating a defect in the hard core while others remain faithful to the old hard core. At this point factions may appear squabbling over what the programme is really about. If -the programme is an 'ism', as it usually is, then disputes appear concerned with the 'true' or 'real' meaning of the 'ism'. This is particularly likely when the programme has become institutionalised and where personal loyalties are involved. In cases where such loyalties are absent the programme may quietly break up leaving whatever it produced of value to be incorporated into other programmes. Something of this kind can be said to have happened with legal realism. Realism was always rather diffuse and it can be said that its hard core was not so much a set of doctrines as a group of attitudes. The basic idea was the importance of the law. in practice. If positivism concentrated on the distinction between law as it is and law as it ought to be, then realism in turn concentrated on the distinction between law as formulated in legal rules and law as it actually happens, especially as it happens in the lower courts where most litigation takes place. For some magistrates and their clerks the rule of recognition directs them only as far as Stone's Justice's Manual, and perhaps not all of them get that far. Inevitably the rules incorporated in statutes and the decisions of superior courts undergo simplication before being applied in the lowest courts. In America the divergence between theory and practice seems to have been particularly marked; certainly many of the realists believed that the rules as formulated in the books were, in some cases, simply not applied by the courts. Unfortunately this insight was sometimes expressed in terms of the non-existence oflegal rules. This, under the name of rule-scepticism, was combined with a predictive analysis of legal validity into the 'realist theory oflaw' conceived of as a rival to positivism. The positivists, notably Hart, had little difficulty in showing that such a theory would not do. Such criticism, though entirely valid, does not affect the hard core of realism which lay elsewhere. 12 This illustrates a point of wider application. Legal positivists have tended to see alternative programmes as rivals, and have distorted them by attempting to extract from them answers to questions that only have importance - or even meaning - inside the positivist programme. Natural law is reinterpreted as the thesis that immoral laws are invalid. If 'validity' is used in the positivist sense then the thesis is quite absurd. Since most positivists are 12

For an illuminating description or realism and the wOly that it has been misunderstood by some positivists see William Twining. Kurt U":'d!vl! and the Realist Afl"l'OIll'JU, l .ondon. Weidenfeld and Nicolson, 197}, especially chapters 5 and 1'i.

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inclined to think natural law always was a lot of muddle they are likely to regard this as confirmation of their opinions. At this point it may be objected that the hard core need not be shared by everyone working on the programme. The hard core may be bound together by a Wittgensteinian family resemblance. In such a case there is a tendency to instability; disputes if resolved would produce a unification of the hard core while if they remain unresolved the hard core and hence the programme itself would tend to break up. Though the hard core of a programme sets down the general form that a theory will take, it does not provide itself an explanation in any but the most general terms. That is the function of the particular theories as worked out in detail. Hence a particular theory may be rejected as unsatisfactory, only to be replaced by an improved version within the same programme. Hart's criticism of the Austinian theory is an example: for Hart, Austin was giving the wrong kind of answers but had been asking the right type of questions. Whereas particular theories provide targets for criticism, programmes have a noticeable tendency towards immunity from purely negative criticsrn. This is true even of the 'hard' empirical sciences, and the Lakatosian apparatus of .protective belt, hard core and negative heuristic is an attempt to explain this. In the 'soft' sciences these tendencies are even more marked. One consequence is that once a programme gets going it has considerable staying power. Legal positivism provides an example. Positivism as a programme appears with Bentham!' and in England it remains the dominant programme." (The standard textbook account is that positivism replaced something called the natural law theory, one of whose central tenets was that unjust laws are invalid. One can find scattered dicta to that effect there is the much quoted remark by Blackstone in the Introduction to the

13 This is tbe esse as far as the En~lish spcakinR ViOfld is concerned. In Germany legal positivism developed quire indepcndemly in the nineteenth century. Althoufith the cxprn.~ion 'posmve law' i~ medieval in ori~in it was ROt unnl lare in the nineteenth

century rhal, presumably under the influence of Comte, the term 'posinvism' W3! applied to Ic~1 theories. The carlin{ reference Olivecrcna has found dales hack only to 1882 (1.IlW as Fact, 2nd ed. London. Stevens, 1971, 52). If would be inrerc!'linll: 10 know the dale of the earliest EnJ!:lish uSC'. 14 "l11i5 lnnocenrlv intended remark produced a surpri5in~ amount of controversy when the paper was read at the A.L~.r. conference. The dominance of English jurisprudence hy the legal pl~i,ivi~15 - ;3 ~ituatioo. it may be added, nOf reflected in other pans of (he world - seems (0 me to be no more a matter of dispute than 1M dominance of F.nldish- I~al hismey by medievalists. One may, of course, approve or deplore either. For an illu!'lrafion of the dominance of pcsuivism in jurisprudence teaching sec R. R. M. Conerett and J. C. Woodlin-c, 'The Teaching ofJuri~prudencc in British Universities' .7nurnol nj ,,,~ Sffl..;~t.y 1'/Public Teachers "jl.ow (1974). 7l-RQ, especially the table on p 80.

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Commentaries'? - but to imagine that such beliefs played a fundamental part in a natural law programme is to misread history. Kelsen's claim that all followers of the natural law doctrine assert that 'positive law is ... valid only so far as it corresponds to the natural law'!" is simply false.) One of the reasons for the dominance of positivism is that it is systematic and coherent in a way that its rivals are not. Fuller and Dworkin - to name the two most eminent critics in recent years - produce a wide range of objections, some good, some bad. Fuller had no alternative theory and though Dworkin is trying to create one - and may succeed - he has not yet done so.

The comparative immunity of a programme from purely negative criticism is not confined to jurisprudence. Purely negative criticism may soften up and weaken a programme but until it is replaced by a new programme it will survive. (There is a curious parallel with a system of property law with relative title - it is not enough to show that the occupier's title is bad; the claimant must produce a better title himself.) There are numerous examples of this in the history of physics. In the later middle ages Aristotelian physics was subjected to powerful criticism but survived because there was (as yet) no alternative. Newton's programme was for all its history surrounded by anomalies: some were cleared up by the programme, others were not, but it was only with the development of a rival programme by Einstein that Newton's programme was superseded. Theories may be adhered to in the face of counter-evidence. Heliocentric astronomy predicts the observation of stellar parallax: none was observed until 1838, but the Copernican system had long been accepted by then. This is not in the least irrational. If a theory explains much it is folly to abandon it just because there are unexplained anomalies. It is when the programme runs out of steam, when the anomalies multiply, when the new theories prove unworkable or refuted, when the theories can only be accommodated with the facts by clumsy ad hoc devices, that the programme must be abandoned. If a theory gives predictions most of which are confirmed but some of which are not, the rational course of action is not to abandon the 0" tlt~ L
1S Sir William Blackstone. Commentaries

16

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theory but to search for an explanation of the failed predictions. Though a descriptive theory does not predict new discoveries, it must explain them. A degenerating theory will always lag behind new discoveries, explaining them by ad hoc revisions; it will increasingly incorporate arbitrary principles whose sole function is to patch up the theory; and the theorist's time will be occupied, not by research, but by efforts to hold the theory together. Yet it cannot be said that there is any precise point at which a theory should be abandoned; and a theory may be retained, despite admitted defects, because the only (apparent) alternatives seem even worse. Whatever its merits, this account of the formation of theories differs markedly from that in favour in the eighteenth and nineteenth centuries, namely inductivism. Though inductivism can be found in forms of varying sophistication, for it is a programme rather than a theory, the central idea, at least of the naive forms that see induction as a logic of discovery, is that scientific reasoning starts from facts and proceeds to develop laws by inductive generalisation. Given this, theorising is at best harmless but is much more likely to be positively deleterious, filling the investigator's mind with harmful preconceptions and prejudices. Theory becomes equated with hypothesis, and hypothesis with guesswork and empty, idle and fruitless speculation. Newton's remarkable achievements seemed confirmation of this; for did he not espouse the method of induction and, by his dictum hypotheses non jingo, 'place a ban on theorising? Certainly this was widely believed and few were disposed to doubt the coincidence of Newton's method and his methodology. Inductivism and empiricism together produced a general antitheoretical outlook; and it is against this background that the rise of legal positivism must be interpreted. It is this, I believe, that explains the reluctance of the early positivists to call their ideas theories of law. To describe something as a theory was to disparage it. To quote from Maine: The inquiries of the jurist are in truth prosecuted much as inquiry in physics and physiology was prosecuted before observation had taken the place of assumption. Theories, plausible and comprehensive, but absolutely unverified, such as the Law of Nature or the Social Compact, enjoy universal preference over sober research ... 17 For Maine theory belonged not to the future of jurisprudence but its past. Though inductivism gave the positivists an extra stick with which to beat natural law, its positive contribution to the development of the positivist programme was not very great. A much greater influence was the ideal of a

17 Sir Henry ,Maine, A"cintl I.iJu:. I')th ed. London, John Murray. 1894. 1.

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rigorous demonstrative science, as exemplified hy the geometry of Euclid. Aubrey has left an account of Hobbes' first acquaintance with Euclid: He was 40 years old before he looked on Geometry; which happened accidentally. Being in a Gentleman's Library, Euclid's Elements lay open, and 'twas the 47 EI. libri 1. He read the Proposition. By G __, sayd he (he would now and then sweare an emphaticall Oath by way of emphasis) this is impossible! So he reads the Demonstration of it, which referred him back to such a Proposition; which proposition he read. Et sic deinceps that at last he was demonstratively convinced of that trueth. This made him in love with Geometry." Hobbes believed that this demonstrative method could also be applied to civil philosophy. In one of his mathematical polemics entitled Six Lessons to the Professors of Mathematics he wrote: Geometry therefore is demonstrable, for the lines and figures from which we reason are drawn and described by ourselves; and civil, philosophy is demonstrable, because we make the commonwealth ourselves. But because of the natural bodies we know not the construction, but see it from the effects, there lies no demonstration of what the causes be we seek for, but only of what they may be." As an ideal this is not as dead as might be imagined. While describing the original position and the arguments derived therefrom, Rawls remarks: One should note also that the acceptance of these principles is not conjectured as a psychological law or probability ... The argument aims eventually to be strictly deductive ... We should strive for a kind of moral geometry with all the rigour which this name connotes." It is no mere coincidence that Rawls and Hobbes are working on the contractarian programme. In a hypothetical social contract the question is not what actual people have agreed (essentially a question of fact) but what constructive people would agree in a hypothetical situation. For this reason according to the contractarian programme - it is possible to demonstrate what kind of agreement would be reached. The demonstrative ideal is not confined to social contract theories; it can also be found in a rather different form in the writings of the legal positivists. (One example of this is the tendency of such works to commence with a definition of law, or at least to give reasons why this is not being done.) The typical

18

lQ

.~n

(Ed. Oliver Lawson Dick) .1",1...;\,'\ Rri.:! l.iTIfI. \nl ed. London. Seeker 31\.1 \t'arhllq,:. IQC;f(. 1')11 Tbomas nnhl'l\'~, (;"gli.f;' Ir',·,kf. (eel Si\ \l;.'illi'lIn l\\nleo:.wnnh). I «udon, john Rt1h:1, IH4~. \'01. VII. 184. John Rawls, A TJ,rMl' fI( .7IHfI,T. Oxtilld. tInu-ndon Prev s, Itl7:', I ~ I

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method in positivist theories is to combine details of how legal systems actually work with an ideal rational dispute solving mechanism. This dispute solving mechanism belongs to the same sort of category as ideal gases, frictionless machines, reversible heat engines and perfectly competitive markets. In each a limiting case is described to which the real world in varying degrees approximates. Similarly where a positivist builds a theory around a dispute solving model the resulting theory may be quite close to some systems of law but markedly different from others. From this perspective the development of legal positivism fits a pattern. Hobbes' political theory is built around a stark choice: either the state of nature or submission to the sovereign. There is no middle ground, no limited authority, no government of laws not men. Reflections on contemporary political events, supplemented by reading - and translating - Thucydides convinced him that political stability required a single unlimited authority that would both decide any dispute and also be able to enforce that decision. Others, such as Filmer, were arguing on similar lines, and a century later the. idea was well on the way to becoming a truism. Johnson's Taxation no Tyranny (1775) expresses the thesis with exemplary clarity: In sovereignty there are no graduations. There may be limited royalty, there may be limited consulship; but there can be no limited government. There must in every society be some power or other from which there is no appeal, which admits no restrictions, which pervades the whole mass of the community, regulates and adjusts all subordination, enacts laws or repeals them, erects or annuls judicatures, extends or contracts privileges, exempts itself from question or control, and bounded only be physical necessity." The utilitarians abandoned Hobbes' social contract and his references to natural law: for Austin, like Johnson, the final authority in a state was of necessity unlimited. Later positivists discarded the sovereign, replacing him by an ultimate rule or norm, but they continued to accept the underlying idea: that every legal system must have a formal structure constructed to produce one answer to disputes. This is element (4) of the hard core of positivism. If part of the hard core of the positivist programme is a rational dispute solving mechanism then changing conceptions of the mechanism produce corresponding changes in the theories. The mechanism at the heart of the sovereignty theory is the simplest one where complete authority is held by one person or group of persons. In more sophisticated versions the ultimate authority is a rule conferring legislative and adjudicative powers. Here a more 21

TJr~ Yak Edinon of (hI' Wnr~c rtf .San",," 1f'/UU"", Vol. X. Ptlli,;Cd! Writi"x.f (ed. D. Press, 1977,421.

J. Greene), NC'wHaven. Yale-Univer;\iry

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general theory is developed which subsumes the sovereign as the special case where all the powers are conferred upon the same person or group. So far positivist theories have been described as providing an analysis of the formal structure of a legal system. This analysis is equally applicable to legal systems actually in force and to imaginary systems (such as an ideal Benthamite code); both will possess the same formal structure. The existence of a legal system - that it is actual, wirklich, in force - is a separate question. Different positivists have given different answers: Austin in terms of habitual obedience, Kelsen in terms of efficacy and Hart in terms of acceptance. According to Hart: There are therefore two minimum conditions necessary and sufficient for the existence of a legal system. On the one hand those rules of behaviour which are valid according to the system's ultimate criteria of validity must be generally obeyed, and, on the other hand, its rules of recognition specifying the criteria of legal validity and its rules of change and adjudication must be effectively accepted as common public standards of official behaviour by its officials." In some cases the officials may pay lip-service to the rules deriving from the ultimate criteria of validity, but in practice ignore or violate them. This happens to some extent in every system (a point the realists rightly emphasised); and to eliminate it entirely the officials would have to pOSSeSS the attributes of Dworkin's Hercules. In some cases the divergence between the law on paper and the actual practices of officials reaches extreme and pathological forms. Judged by formal criteria the Soviet Union in 1937 was a federal state with a written constitution enacted the previous year guaranteeing, according to the official history "freedom of speech, press, assembly and meeting, the right to unite in public organisations, inviolability of person, inviolability of domicile and privacy of correspondence". 21 The reality was very different, and is now too familiar to require description. In cases like this, when the ostensibly valid provisions of the constitution are cynically ignored, when trials become political theatre, and when guilt is divorced from any acts or intentions of the accused, then the question arises whether, and in what sense, the legal system can be said to exist. In such 22

n, C,","'~P' oj lAW supra

23

Union (HnlrlrrtJiJu), Short Covrse. (Eughsh translenon. MO~(lw. 19iq). 140;. Kolakowski has described the: nature of tcealitatian legal system in these terms. 'In this way Lenin l:,Jili the t'lumJalill1l5 III 1c~i5lation that distinguishes a totalitarian from a merely despotic system, the operative fact being urn,h.u il i~ severe hut that it is spurious. A law may provide draconic penalties for small offences withcru being specifically tmalitarian; WhClI is characteristic of the totalitarian law is the Wit:' nf such fonnutas as Lenin's: people m:l)' 1"(' executed-for ~xprc55inK viewsthat may 'ohiecnvely serve the interests of the bouracoisie' This means that the government can pur to death anyone it chooses; there is no such thin" as law; it is 0(11 that Ih\' crimina! code i~ severe, hUI that if lu.. llll existence C-:tC~PI III name'. I,t"'i'l'k Kolakowski, M.li" (:urr"''''11( M.lI'H,o". Oxford, Ct.rrcndon Prc,,~. IQ";R. Vol. II. CilIA.

110(('

7 at II J,

History 01 the Communisr Party of the

the

Sov'"

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pathological cases the facade remains capable of analysis in positivist terms, but the actual practices do not. This does not falsify or discredit positivism, instead it reveals the limits of its application. In that field where positivist theories are applicable the remaining question is what criteria there are for choice between them. Faced with an equivalent problem a physicist would envisage some situation where the rival theories would give different predictions and then devise and perform an experimental test. Though such crucial experiments are not as straightforward as might at first sight appear, the problem in legal theory is that they are not possible at all. Positivist theories like Hart's or Kelsen's do not make any predictions. For this reason falsificationisrn, whatever its merits in the natural sciences, is not applicable in legal theory. Admittedly a legal theory may be so formulated as to contain a statement that can be found to be false, but a sophisticated theory will be expressed in such abstract terms that such a possibility is excluded. The point is that the theory does not make falsifiable predictions. The early positivists seem to have regarded their achievements as simply the creation of ordered and systematic collections of facts about laws in general. While natural law and the social contract were figments of the imagination, the products of idle and uncontrolled speculations, not unmixed with prejudice and sinister interest, the new philosophy of positive law was based firmly on the facts. The proliferation of rival and incompatible positivist theories creates a difficulty here, for if a theory is simply derived from the facts there must be some explanation why all legal theorists - or at any rate those who are open minded and free from prejudice - do not agree and show no signs of coming to an agreement. Doubtless some kind of theory of false consciousness could explain the error but, as is the way with such theories, it would make the truth unknowable to all except the elect. It would seem that a (positivist) legal theory is rather more than a mere description of the general characteristics oflegal systems. The second element of the positivist hard core - the existence of a common structure - cannot simply be derived from the facts, but bears a more complex relation to them. Between facts and theories there is a two way relation: in the light of the facts the theory is reformulated and in the light of the theory the facts are reinterpreted. Whatever the possibility of some theoretically neutral observation language in the natural sciences - and this is very much a matter of controversy - there seems no chance of an equivalent neutral language for jurisprudence. The fundamental terms legal theorists use, such as right, duty, rule, sanction, have themselves acquired their meanings partly as a result of the artivities oflegal theorists, as well as professional lawyers and laymen. Perhaps a legal philosopher of superhuman acumen might create an atheoretical neutral language in which observations of legal systems could be recorded hut even if this were possible it would inevitably ignore what Hart has called the internal aspect of rules.

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A positivist legal theory is constructed about a model which is some version of the positivist hard core. Faced with recalcitrant facts that do not fit the model the theorist has various choices: (1) he may scrap the model and try and construct a better one, (2) he may reject the alleged counter-examples as not being really legal - which is what Austin did with international law or (3) he may deny that the apparent counterexamples are really counterexamples at all. It is here that legal theorists differ. For Austin international law was not really a counterexample, for his critics it was; for Hart a power conferring rule is a counterexample to the thesis that all rules are imperative, whereas Kelsen retains the imperative nature of the rule by regarding it as being addressed to officials. For Hart, Kelsen's analysis obtains uniformity only at the price of distortion; a follower of Kelsen may deny the distortation - laws are logically addressed to officials but only psychologically to the citizen - or (what amounts to much the same) admit that this analysis goes counter to our ordinary conceptions but regard such a price well worth paying. In the same way Dworkin sees principles in cases like Riggs v Palmer while his critics see just rules. It is rather like those Gestalt pictures where sometimes we seea duck and at other times a rabbit. However, whereas anyone can easily switch from duck to rabbit and back again, the conceptual switch is more difficult to perform. The theory becomes a conceptual scheme through which the world is interpreted, so that in extreme cases counter-evidence is simply filtered out. This explains why positivists, having worked out their theories, rarely if ever make more than minor modifications to them. Because a legal theory in its developed form is immune from direct falsification, an ingenious and determined theorist can fit most apparent counterexamples into an existing theory. In those rare cases where this is not possible, or where the adjustments are more than usually unconvincing, the theory can be converted into a definition of law and the counterexamples will be rejected as non-legal. A positivist, quite naturally, will regard as legal only those facts that his theory can explain, and the fourth element of the hard core provides a demarcation between the legal and the non-legal. If laws are the commands of a sovereign, then international law cannot really be law but must be some kind of positive morality. To an outsider this may seem arbitrary but from inside the theory it will appear much more reasonable. The ordinary man, if told that laws were really addressed to officials, would probably express disbelief. Should we take his opinions seriously? A British philosopher brought up in a tradition of common sense and ordinary language probably would, but a German neo-Kantian might think differently. The argument so far points towards some form of conventionalism. (It may be said that this paper is offering a conventionalist account of legal theory expressed in Lakatosian terrninology.) When there are rival theories-they

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must be evaluated in terms of their explanatory power, generality, elegance, simplicity, absence of arbitrary assumptions and ad hoc explanations, and so on. The standards pull in different directions. Austin's theory scores high for simplicity but does less well on generality and explanatory power. Kelsen's theory is much more general and yet retains a high degree of simplicity and even elegance, but involves arbitrary assumptions - such as the epistemological postulate of the unity of national and international law" and there is much mystification and obscurity surrounding the Grundnorm. In both Austin's and Kelsen's systems the legal rules are of a single logical type; Hart abandons this restriction and introduces his distinction between primary and secondary rules. Though some simplicity is lost there is an immense gain in explanatory power. Further refinements might be added by distinguishing new categories of rules. Dworkin's principles thesis is another example of a new theory which, though more complex than its positivist rivals, purports to offer a superior explanation ofcertain aspects oflegal decisions. So far most positivists remain' unconvinced but it is possible that Dworkin's theory may gain adherents; certainly it has resulted in a large and growing body of controversial literature. In any event it is worth developing a rival programme along the lines Dworkin has indicated, for even if it fails something is bound to be learnt, and the positivists will have been stimulated into producing more careful and illuminating versions of their own theories. In an area like this it is idle to look for certainty; there will always be those who find a new theory unconvincing and prefer to stick to the old. Such recalcitrance is neither illogical or irrational, for there are no infallible demonstrations or unanswerable refutations. This is not to say that there can be no good reasons for choosing one theory rather than another or that any such choice is quite arbitrary. When two legal theories conflict both sides can find reasons to support their own positions, so to choose between rival theories the philosopher'rnust be like a judge reviewing and weighing conflicting authorities. Inevitably there will be disagreements and dissenting opinions, for different arguments will be given different weights. It is quite illusory to think that such disagreements are the result of the intrusion of values and that providing the theorist confines this attention to facts everyone will agree with his results. The spectacle of various writers on jurisprudence squabbling over who is entitled to call his theory scientific illustrates the point. This type of dispute is unlikely to be resolved for no party is likely to allow its opponents the exclusive use of so prestigious a description. Just as, for Hagerstrom and his followers, a right was a species of magical power, a feeling of superiority 24

Ham Kelsen, ~""aI17l~ry

til Law

and Sum', Cambridge, Ma!l~. Harvard University Press, IQ4'i. 171.

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enjoyed by its possessors, so one could argue (ad hominem of course) that science was not something objective and rational - that would be metaphysical - but rather a magical device for conferring feelings of intellectual power and superiority upon those who use it. Although Kelsen is continually asserting that his Pure Theory is scientific, he is much more reticent when it comes to describing the methods of his science. He seems to regard the theorists' main task as the negative one of eliminating any trace of morality, political ideology and metaphysics; and once this is done the Pure Theory seems to emerge from what remains. In reality this is the clearest of all examples of a theorist deciding in advance what form a theory should take and then imposing this conception on the facts. The result is an elaborate system that is undeniably impressive but also dogmatic, sterile and strangely unreal.