The Origins of Law and Its Essential Strucures

See particularly his General Theory of Law and State (New York: Russell and Russell, 1961) and The Pure Theory of Law (Berkeley and Los Angeles: The University of California Press, 1967). Austin’s The Province of Jurisprudence Determined appeared in 1832; it was also published by the Noonday Press (New York: 1954).Google Scholar

In his “The Phenomenological Description of Law,” trans. Raoul Mortley, in Maurice Natanson, ed. Phenomenology and the Social Sciences (Evanston: Northwestern University Press, 1973), II: 367–449, at 381ff., Amselek labels approaches to law such as that of Merleau-Ponty “syncretism.” Instead, he prefers the “methodological principles” of Hans Kelsen’s “pure theory of law” “which bear a fundamental relationship to those defined by Edmund Husserl” (p. 382). Accordingly, Amselek wishes to work out a purely eidetic analysis of the essence of law, disentangled from all other social phenomena. He considers that Kelsen’s intentions were pure, even if his results were not, and views him as “speaking the real language of phenomenology” when he (Kelsen) writes of the envisaged pure science, “The fundamental principle of its method is thus to eliminate from the science of law all elements which are foreign to it.” Merleau-Ponty would be much more inclined to endorse the view that “law reaches into nearly all social ativities but only as a part (of varying importance) of each such activity…. ” Geoffrey Sawer, Law in Society (Oxford: The Clarendon Press, 1965; reprinted 1973), p. 13. As a result, law cannot be disentangled from other aspects of the social Gestalt without distorting its experiential identity. I shall return to this in the last section of this chapter. Amselek, be it noted in passing, is not only critical of Kelsen’s results—for rendering law “obscure by certain doctrinal considerations, in particular by a fairly marked Kantian influence” (p. 383)—but also takes issue with Austin’s positivism and theory of sovereignty, whilst keeping a “command theory” of law. See below in section 3. The former claim is all the more interesting because it is far from clear that Kelsen ever read Kant.Google Scholar

This issue, which has a considerable history, will be addressed in the final chapter. In our own times, perhaps the most illustrious contribution, also discussed below, is the celebrated debate between H.L.A. Hart and Lon L. Fuller. For the former, see, among other things, “Positivism and the Separation of Law and Morals,” 71 Harvard Law Review 593–629 (1958), Law, Liberty, and Morality (Oxford: Oxford University Press, 1963), and Essays in Jurisprudence and Philosophy (Oxford: Oxford University Press, 1983) (in which, by the way, the first article is reprinted). For the latter, again among many texts, see “Positivism and Fidelity to Law—A Reply to Professor Hart,” 71 Harvard Law Review 630–73 (1958), and The Morality of Law (New Haven: Yale University Press, 1963). This debate is only the tip of a much vaster iceberg, but it is a splendid tip.Google Scholar

Hart observes, it propos of Mark Twain’s Huckleberry Finn,that it is “a profound study of the moral dilemma created by the existence of a social morality which runs counter to the sympathies of an individual and to humanitarianism. It is a valuable corrective of the identification of all morality with the latter.” The Concept of Law (Oxford University Press, 1961), p. 254n. The passage to which this note is attached is as follows: “Huckleberry Finn, when asked if the explosion of a steamboat boiler had hurt anyone, replied, ”No’m: killed a nigger.’ Aunt Sally’s comment `Well it’s lucky because sometimes people do get hurt’ sums up a whole morality which has often prevailed among men“ (p. 196).Google Scholar

Neil MacCormick, “Law as Institutional Fact,” 90 Law Quarterly Review 102 (1974), at pp. 106, 110. Cited in John Finnis, Natural Law and Natural Rights ( Oxford: The Clarendon Press, 1980 ), p. 227n.Google Scholar

Amselek, p. 369. The references to Bergson are, respectively, The 71vo Sources of Morality and Religion, trans. R. Ashley Audra and Cloudesley Brereton, with W. Horsfall Carter (New York: Holt, 1935), p. 298 (translation slightly modified by Raoul Mortley); and Creative Evolution, trans. Arthur Mitchell ( New York: Holt, 1911 ), p. 141.Google Scholar

Expressed“ is used here in the widest possible sense to cover rules that are explicitly written out as well as those which are implicitly revealed in actions or interpreting texts. Not all criteria of validity are explicitly formulated, and not all constitutions or codified systems provide specifically mentioned criteria (or ultimate criterion) of validity in the system.Google Scholar

Sawer, pp. 64–65.Google Scholar

This passage repeats an earlier, more interesting, but posthumously published version at PM 95–96: “Husserl employed the nice word Stiftung to designate first this indefinite fertility of each moment of time, which exactly because it is singular and passes, will never be able to cease having been or to be universally—and, what is more, the fertility, derived from the former one, of the operations of culture which open a tradition, continue to count after their historical appearance, and demand beyond themselves the same and other operations.”Google Scholar

Sawer, p. 127. (Italics in the original text.)Google Scholar

Sawer, p. 128.Google Scholar

Sawer, p. 128.Google Scholar

Sawer, p. 127.Google Scholar

Sawer, p. 127.Google Scholar

There is, however, a puzzle over the precise legal status of private administrative orders in systems which allow for them. For example, presidents of the United States can issue “executive orders” without any requirement to publicize them. At certain times, as in the case of Richard Nixon during the Watergate era, such secrecy is of acute legal importance.Google Scholar

Hart, The Concept of Law,p. 97.Google Scholar

Amselek (pp. 433–34) argues for some of the same reasons against Austin’s theory of sovereignty whilst keeping a command theory of law as conceptually distinct from the question of positions of superiors and inferiors. This is so in part because “commands and recommendations can be set up on the basis of joint agreement between two or more individuals concerned (e.g., legal contracts)” (p. 434).Google Scholar

Kelsen follows Austin here in large part, but Amselek rejects the conceptual link between commands and compulsion, and yet maintains that it is part of the essence of law to appear as a command (pp. 426–49). It is perhaps wise to remember as well that the fact that force (enforceability or the likelihood thereof) is a necessary condition of a valid legal order implies as well that particular laws in the system cannot be purely subjective either. They cannot merely project the state of mind of officials in the system, but rather must have some objective weight. Hence the oddity of Parisian traffic signs which say, “Parking Tolerated But Not Advised” (“Stationnement Toléré Mais Pas Conseillé”). Parisian drivers, always alert to the possibility of even the most infintesimal parking place, if not to the subtleties of a legal consciousness, are not overwhelmed by the subjective wishes of their officials. In New York City, near the World Trade Center, social control functions a bit differently. For, although there is a hugely prominent warning that reads, “Don’t Even Think of Parking Here,” the latter sign is posted underneath a more prosaic threat to tow away the automobiles of offending drivers and to subject the latter to Draconian fines. In any case, the former sign could hardly have any legal force before the arrival of the Thought Police of 1984.Google Scholar

Sawer, p. 17. (Italics in the original text.) Amselek also rejects the fundamental tenets of a Begriffsjurisprudenz,for reasons that will appear in the following section.Google Scholar

For an earlier version of the following remarks, see William S. Hamrick, “Towards a Phenomenology of Legal Rules,” Journal of the British Society for Phenomenology, Vol. X, No. 1 (January 1979), pp. 9–22.Google Scholar

Hart, The Concept of Law, p. 78.Google Scholar

Hart, pp. 78–79.Google Scholar

Hart, pp. 78–79.Google Scholar

Hart, p. 92.Google Scholar

Hart, p. 92.Google Scholar

Hart, pp. 92, 93.Google Scholar

Hart, p. 93.Google Scholar

Hart, p. 94.Google Scholar

Hart, p. 87.Google Scholar

Hart, p. 244.Google Scholar

Hart, p. 244.Google Scholar

Hart, p. 87.Google Scholar

Hart, p. 87. (Italics in the original text.)Google Scholar

Hart, p. 88.Google Scholar

Hart, p. 88. (Italics in the original text.)Google Scholar

This view refers to the psychological theory of obligation mentioned above, as well as to Hart’s distinction between “being obliged” to do something and “having an obligation” to do it. The conditions for the former are satisfied if coercive force is applied and recognized as such. For example (Hart’s own), if a gunman demanded my wallet or my life, I would “be obliged” to hand it over. But I would clearly have no obligation to do so. In Hart’s view, the Austinian analysis makes law into “the gunman writ large” (The Concept of Law, pp. 6ff.). Alf Ross also analyses validity and obligation in terms of both whether a given rule is really effective and whether it is generally perceived to be motivating or socially required. See Chapters I and II of his On Law and Justice (Berkeley and Los Angeles: The University of California Press, 1959).Google Scholar

Hart, p. 82.Google Scholar

Hart, p. 88. The same situation can apply in various ways to different classes of people, and not just to “bad men.” One could consider, for example, the accounts by R.D. Laing and A. Esterton of the ways that children try to cope with parentally imposed “obligations”-actually, the state of “being obliged”-and rules which are perceived as absurd obstacles. One way of describing the resultant schizophrenia is to say that the children concerned could never reach the stage of “having obligations,” but were rather always “being obliged” to follow inconsistent and mystifying commands. Emptied of all internal sense, the rules were reduced to mere expedients for staying out of harm’s way. They were not accepted from the internal point of view as reasons for doing or abstaining from doing certain things. R.ther, they were mere problems, but horrifying ones, of calculating the path of least resistance. See Laing and Esterton’s Sanity, Madness and the Family (London: Penguin Books, 1970) and William S. Hamrick, “Language and Abnormal Behavior: Merleau-Ponty, Hart, and Laing,” Review of Existential Psychology and Psychiatry, Volume XVIII, Nos. 1, 2, & 3, 1982–83 (but actually published in 1985 ), pp. 181–203.Google Scholar

Hart, p. 104.Google Scholar

Hart, p. 100.Google Scholar

Hart, p. 102.Google Scholar

Word“ here is ”le mot,“ in the sense of a dictionary word which is part of the linguistic equipment belonging to la langue rather than ”the spoken word“ which pertains to la parole.Google Scholar

Italics are in the original text. Pierre Bourdieu, one of the leading figures in socio-criticism in France today, has recently expressed almost the same ideas in his “Le champ littéraire: Préalables critiques et principes de méthode,” Lendemains 36, 1984, p. 5.Google Scholar

The “Preface” to The Concept of Law tells us that, “Notwithstanding its concern with analysis-the book may also be regarded as an essay in descriptive sociology.” He is also influenced in this respect by J.L. Austin’s “linguistic phenomenology” in the sense that, in doing a descriptive sociology, “it is particularly true that we may use, as J.L. Austin said, `a sharpened awareness of words to sharpen our perception of the phenomena’” (The Concept of Law,p. vii). By contrast, one might say that in Merleau-Ponty’s phenomenology, one finds a sharpened awareness of the phenomena which can help us comprehend better our use of words, and the internal and external aspects of rules form a particularly interesting case in point. And in fact, precisely in the context of the internal aspects of rules, Neil MacCormick points out a possible reason why Hart’s account of the internal aspects of rules converges with Merleau-Ponty’s view of the relation of speech to language and of the place of language amongst other orders of social meaning. MacCormick underlines the fact that Hart was influenced substantially by Max Weber, especially through Peter Winch’s The Idea of a Social Science and its Relation to Philosophy (London, 1958), especially Chapter 2. MacCormick’s references to this influence on Hart are located in his Legal Reasoning and Legal Theory (Oxford: The Clarendon Press, 1978), pp. 278–79.Google Scholar

Hart, p. 35.Google Scholar

Hart, p. 35.Google Scholar

Hart, p. 36.Google Scholar

Hart, p. 37.Google Scholar

Hart, p. 39.Google Scholar

Hart, p. 40.Google Scholar

Amselek, p. 384. (Italics in the original text.)Google Scholar

Amselek, p. 408. (Italics in the original text.)Google Scholar

This expression is borrowed from Georges Hostelet, L’Investigation scientifique des fait d’activité humaine (Paris: Rivière, 1960); cited by Amselek at p. 411.Google Scholar

Amselek, p. 411. (Italics in the original text.)Google Scholar

Amselek, p. 384. (Italics in the original text.)Google Scholar

Amselek, p. 417. (Italics in the original text.)Google Scholar

Amselek, pp. 418–19. (Italics in the original text.)Google Scholar

Amselek, pp. 422–25.Google Scholar

Amselek, pp. 414–15.Google Scholar

Amselek, p. 416. (Italics in the original text.)Google Scholar

Amselek, p. 429. (Italics in the original text.)Google Scholar

Amselek, p. 384. (Italics in the original text.)Google Scholar

Amselek, p. 432. (Italics in the original text.)Google Scholar

Amselek, p. 436.Google Scholar

Amselek, p. 437, n.129.Google Scholar

Hart, p. 60.Google Scholar

See, for example, Joseph Bingham, “What is the Law?”, 11 Michigan Law Review,2–15, 22–23 (1912). See also Hart, “Positivism and the Separation of Law and Morals.” At n. 40, Hart points out that one legal realist, Karl Llewellyn, recanted an early, extreme form of the doctrine which had appeared in his The Bramble Bush. In the second edition of that work, which appeared in 1951, Llewellyn described his earlier formulations as “unhappy words when not more fully developed, and they are plainly at best a very partial statement of the whole truth” (p. 9). Roscoe Pound classified phenomenology as the fifth of six “social philosophical schools of the philosophy of law.” See his Outlines of Lectures on Jurisprudence (Cambridge: Harvard University Press, 1943), p. 20. Pound argues for the relative jurisprudential unimportance of phenomenology in America, since its goals had already been reached by the Legal Realists. In terms of the concept of legal rules, Pound was mistakenly certain that this is the case, as the present chapter has made abundantly clear—at least for the existential phenomenology of Merleau-Ponty. (I am grateful to Mr. Neil Duxbury of the Faculty of Law, London School of Economics, for calling my attention to this reference. It is to be found in his unpublished undergraduate thesis in the University of Hull, 1984, “In What Way Might We Move Towards a Phenomenological Approach to Law?”, p. 64, n.l. Mr. Duxbury currently is completing his doctoral dissertation on Reinach’s phenomenology of law.Google Scholar

What Raz actually says is that the fact that obsolete rules “are disregarded by the population is irrelevant to their existence.” The Concept of a Legal System (Oxford: Oxford University Press, 1970), p. 201. But this subtly misdescribes the situation, because we cannot disregard something unless we first notice it, and it is most improbable that the majority of participants in a legal system are aware of most obsolete rules in the first place.Google Scholar

This is Raz’s own conclusion, except for the claim that obsolete rules ought to be treated as invalid whenever met with.Google Scholar