Law, morality and positivism

Authors


Footnotes

  • 1

    . John Austin, The Province of Jurisprudence Determined (ed. H. L. A. Hart, London, 1954) pp. 184–5.

  • 2

    . See Robert Nozick, Anarchy, State and Utopia (Oxford, 1974) pp. 169-172. For a critique of Nozick's view on this point, see H. L. A. Hart ‘Between Utility and Rights’, Alan Ryan (ed.) The Idea of Freedom (Oxford, 1979) pp. 77–98.

  • 3

    . See Karl Marx, Manifesto of the Communist Party, section 11: ‘Your very ideas are but the outgrowth of the condition of your bourgeois production and bourgeois property, just as your jurisprudence is but the will of your class made into a law for all…‘(Marx and Engels: Collected Works, London, 1968, p. 49).

  • 4

    . See James, Viscount Stair, Institutions of the Law of Scotland (2nd edn. Edinburgh, 1688; ed. D. M. Walker, Edinburgh, 1981), esp. I.i.

  • 5

    . See John Erskine, Principles of the Law of Scotland (1st edn. Edinburgh, 1759);An Institute of the Law of Scotland (1st edn, Edinburgh, 1776), esp. 1.i.

  • 6

    . See Montesquieu, De I'Esprit des lois (1st edn. Geneva, 1748; Vol. 1, tr. and ed. Thomas Nugent, Sub. nom. The Spirit of the Laws, New York, 1949), ch. 1.

  • 7

    . See William Blackstone, Commentaries on the Laws of England (1st edn. 1765), esp. Introduction.

  • 8

    . Bentham's first published critique of natural law doctrine was of course A Fragment on Government (1st edn, 1776), now republished under the editorship of Professors J. Burns and H. L. A. Hart, together with the posthumously published Comment on the Commentaries (London, 1977). A good account of the history of the positivistic revolution in legal thought is given in Karl Olivecrona, Law as Fact (2nd edn, London, 1971), chapter 1.

  • 9

    . See J. Raz, The Authority of Law (Oxford, 1979), chapter 4; H. L. A. Hart has indicated his acceptance of this terminology in hitherto unpublished lectures.

  • 10

    . See Bentham, Fragment (cit. sup. n. 8) chapter 1, ss. 12-19. Austin, Province (cit. sup. n. 1), chapter 1.

  • 11

    . Cit. sup. n. 5; or see Erskine's Principles (18th edn, J. Rankine, Edinburgh, 1890), p. 1; and compare Institute I.i.2: ‘Law may be defined the command of a sovereign containing a common rule of life for his subjects, and obliging them to obedience. By a sovereign is understood the supreme power, whether it be lodged in the hands of one or of many’. See also 1.i. 19 on the logical illimitability of sovereign power, and I.i.43 on the thesis that ‘unwritten law is that which, without any express enactment by the supreme power, derives force from its tacit consent’ (italics added). Compare Austin and Bentham, cit. infra. n. 13.

  • 12

    . See D. Hume, An Enquiry concerning the Principles of Morals (Hume's Enquiries. 3rd ed, Selby-Bigge and Nidditch, Oxford, 1975), Section III; a more complex version of the same doctrine was published in his earlier Treatise of Human Nature (ed. Selby-Bigge, 2nd edn, Nidditch, Oxford, 1978), Book III, Part II.

  • 13

    . See Bentham, Fragment, chapter 1; also Of Laws in General (ed. J. Burns and H. L. A. Hart, London, 1970) chapters 1 and 2, for a more subtle and qualified statement on sovereignty; see also Austin, Province, chapters 1 and 6.

  • 14

    . Oxford, 1961, see particularly chapters 1–6.

  • 15

    . Hart, Concept of Law, pp. 9–11, 54–9, 242.

  • 16

    . Ibid, p. 121.

  • 17

    . Ibid, pp. 86–8.

  • 18

    . Ibid, pp. 54–6, 83–96.

  • 19

    . Oxford, 1978, pp. 275–292. For a somewhat different view, see J. W. Harris, Law and Legal Science (Oxford, 1979) pp. 52–63.

  • 20

    . See Concept of Law, pp. 198–9.

  • 21

    . But see Hart, ibid. The mere fact that people show a common preference for a particular pattern of conduct does not of itself show or entail that they all have the same reasons for preferring it, or share the same underlying values.

  • 22

    . Ibid., pp. 54–5.

  • 23

    . Ibid., pp. 163–180, esp. pp. 169–171.

  • 24

    . J. Raz, Practical Reason and Norms (London, 1975), pp. 49–58.

  • 25

    . Stephen Guest, ‘Legal Education and Legal Theory’ [1979] Current Legal Problems, pp. 179–197.

  • 26

    . Ronald Dworkin, Taking Rights Seriously (London, 1977) chapters 2 and 4. Of course, Dworkin also forcefully criticises Hart's practice theory of rules; ibid., chapter 3.

  • 27

    . See MacCormick, H. L. A. Hart (London, 1981, forthcoming), esp. chapters 3–5; also Legal Reasoning and Legal Theory, chapters 7 and 9.

  • 28

    . In Practical Reason and Norms, at pp. 170–7, Joseph Raz suggests a further differentiation of ‘points of view’ for such purposes as those here under consideration. Cf. John Finnis, Natural Law and Natural Rights (Oxford, 1979) pp. 2357, 239–242, the debt to Raz being acknowledged at p. 235.

  • 29

    . Aristotle, Politics (Trans. T. A. Sinclair, Harmondsworth, 1962) 1 and 2, p. 28.

  • 30

    . For a discussion of this philosophical approach, see Zygmunt Bauman, Hermeneutics and Social Science (London, 1978) and MacCormick, H. L. A. Hurt, chapter 3.

  • 31

    . P. M. S. Hacker ‘Hart's Philosophy of Law’, P. M. S. Hacker and J. Raz (eds.) Law, Morality, and Society (Oxford, 1977) chapter 1; esp. pp. 12f.

  • 32

    . See Hart, Concept of Law, chapter 5.

  • 33

    . Ibid.

  • 34

    . See MacCormick, H. L. A. Hart, chapter 9.

  • 35

    . Hart, Concept of Law, pp. 92–3, 97–107 cf. Raz, Practical Reason and Norms pp. 146–8.

  • 36

    . Hart, Concept of Law, pp. 94–5.

  • 37

    . Ibid., p. 94–5.

  • 38

    . London, 1963.

  • 39

    . Jerusalem and London, 1965.

  • 40

    . Oxford, 1968.

  • 41

    . See the dicta of Lord Sionds in shaw v DPP [1962] AC 220 esp. at 268, criticized by Hart in Law, Liberty and Morality.

  • 42

    . See Patrick Devlin, The Enforcement of Morals (London, 1965).

  • 43

    . See Vestey v IRC [1979] 3 All ER 976.

  • 44

    . See MacCormick, H. L. A. Hart, chapter 5 for an expansion of these suggestions.

  • 45

    . See R. A. Duff, ‘Legal Obligation and the Moral Nature of Law’, 1980 Jur. Rev. pp. 61–87, esp. at 7986. I must acknowledge my great indebtedness to this paper and to John Finnis’Natural Law and Natural Rights (Oxford, 1979).

  • 46

    . St. Thomas Aquinas, Summa Theologiae, 141, q. 954, a. 2c.

  • 47

    . Stated in J. Finnis, Natural Law and Natural Rights (Oxford, 1979) chapter 12. At pp 363–6, Dr Finnis rightly stresses that the famous Thomist phrase about the ‘corruption of law’ involved in unjust legislation ought to be interpreted in terms of an inquiry into what is law in the focal sense of the term. On this extremely persuasive reading of Aquinas, shared by Duff, op. cit., we cannot read Aquinas as suggesting that ‘justice’ is a condition of validity of an enactment.

  • 48

    . This paper is the text of a special lecture in laws delivered in King's College, London on 10 November 1980.I have made only minor amendments for the sake of the printed as against the spoken word. I owe hearty thanks for the invitation and for much kind hospitality to the University of London, the King's Faculty of Laws, and in particular Professor A. G. Guest and Mr J. M. Thomson; also to the Editor of the Journal for helpful stylistic criticism. N. MacC.

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