The Legacy of John Austins Jurisprudence: 103 (Law and Philosophy Library)
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You already recently rated this item. Your rating has been recorded. Write a review Rate this item: Preview this item Preview this item. The legacy of John Austin's jurisprudence Author: Dordrecht ; New York: Law and philosophy library , v. English View all editions and formats Summary: This is the first ever collected volume on John Austin, whose role in the founding of analytical jurisprudence is unquestionable.
After years, time has come to assess his legacy. The book fills a void in existing literature, by letting top scholars with diverse outlooks flesh out and discuss Austin's legacy today. A nuanced, vibrant, and richly diverse picture of both his legal and ethical theories emerges, making a case for a renewal of interest in his work. The book applies multiple perspectives, reflecting Austin's various interests - stretching from moral theory to theory of law and state, from roman law to constitutional law - and it offers a comparative outlook on Austin and his legacy on the backdrop of the contemporary debate and major movements within legal theory.
It sheds new light on some central issues of practical reasoning: Scholars Portal Books SpringerLink.
Allow this favorite library to be seen by others Keep this favorite library private. Find a copy in the library Finding libraries that hold this item Electronic books Additional Physical Format: Document, Internet resource Document Type: This article analyses H. Hart's concept of international law from the perspective of anaytical jurisprudence and in light of the state of contemporary international law.
Hart arrives at this conclusion on the basis of a comparison of the international legal order with the municipal legal system. This comparison is distorted by Hart's general focus on private law and criminal law and becomes less convincing when constitutional law is added to the equation. As a consequence, Hart's methodological approach is inconsistent and should be modified. Rather than asking whether international law resembles municipal law in form, it should be asked whether international law encompasses legislative, executive, and judicative structures which are able to perform the same functions as the legal order of a nation state, and which thereby overcome the defects of a primitive social order.
Against the background of this modified analytical framework, Hart's analysis is revisited in light of recent developments and changes in the structure of international law at the beginning of the 21st century. Hart's contribution to analytical jurisprudence is undisputed. His approach to law and the legal system, most comprehensively developed in The Concept of Law , 1 has shaped the landscape of legal philosophy in the Anglo-American sphere and beyond. Even lawyers and legal scholars who are not deeply engaged in legal philosophy will regularly be able to attribute keywords like the rule of recognition or the differentiation between primary rules and secondary rules to Hart.
One particular aspect of Hart's legal theory, however, remains noticeably underdeveloped in his own work and underexposed in the reception by lawyers and philosophers: The same is true with regard to scholars of international law. While they at times refer to Hart's distinction between primary and secondary norms, 6 mention him as one among other legal positivists, 7 or use his concept as a framework for analysis, 8 more comprehensive analysis of his theory of international law is rare.
A possible explanation for this lack of a more intensive engagement with Hart's concept of international law could, of course, lie in the possible belief of legal philosophers and international lawyers that such an engagement was irrelevant. Therefore, a few preliminary remarks on the relevance of a jurisprudential encounter with international law in general and with Hart's approach to international law in particular seem in order and should precede an analysis of Hart's theory of international law. As much as legal philosophers disagree about the nature of law, they generally agree that there actually is a thing called law.
Not so in international law. An inquiry into the nature of the international legal system usually starts with the question of the legal quality of international law. The jurisprudence of international law has long been influenced by the command theory, developed by the English legal philosopher John Austin in The Province of Jurisprudence Determined. Rules are defined as commands, coercive orders, or wishes backed by the threat of imposing an evil in the form of a sanction in the case of non-compliance with the wish.
On the basis of this general command theory Austin does not regard international law as law. According to him international law does not stem from the command of a sovereign but is set by general opinion and enforced by moral sanctions only. Austin is generally deemed to be the last influential denier of the legal quality of international law.
With the effective repudiation of Austin's command theory by Hart 19 a major obstacle in recognizing international law as law seems to be abandoned. However, there have always been and still are approaches which do not fully deny the validity of international law but downplay its role for the reality of international politics significantly. Realist approaches, traditionally advanced, for example, by Hans Joachim Morgenthau and Georg Schwarzenberger, take international law into account but emphasize its limited ability to restrict power exercised by states.
Nevertheless, doubts about the legal quality of international law may endorse and legitimize proponents of more restrictive approaches to the international legal order. Analytical theories of international law, furthermore, not only help one understand the system better; they also influence the methods international lawyers apply when identifying and interpreting the law. The question about the normative foundations of international law remains relevant even when the legal quality of international law as such is hardly disputed anymore. The general relevance of analytical jurisprudence with regard to international law does not necessarily imply the relevance of a deeper engagement with Hart's concept of international law.
For a number of reasons, however, an inquiry into Hart's theory seems fruitful, especially from the perspective of international law. As already mentioned, Hart is regarded as the legal philosopher who most effectively refuted Austin's denial of international law's legal validity. Moreover, since positivism is among the most influential theoretical approaches to international law, 24 it seems natural to engage with one of the most influential contemporary legal positivists and one of the few legal philosophers who bothered to approach international law from the perspective of analytical jurisprudence.
One might argue that positivism has such a long and well-established tradition in international law that an inquiry into yet another positivist concept of international law would seem unnecessary and repetitive. This would be a mistake, because Hart's positivism avoids one of the major shortcomings of classical positivism, which is a too close association of the validity and nature of the legal order with the will of sovereign states.
The classical positivist accounts of international law, as they were developed in the late 19th and early 20th centuries, basically were voluntarist theories of international law. Georg Jellinek, for example, saw the basis for obligations under international law in an act of auto-limitation by states. The traditionally tight relationship between legal positivism and voluntarist conceptions of international law has led many scholars to believe that positivism necessarily implies a voluntarist approach to international law.
For Jellinek and Triepel it was the will of states, for Kelsen it was the Grundnorm , 31 for Hart the rule of recognition. This concept of law encompasses the potential for a positivist approach to international law which evades the shortcomings and limitations of voluntarism. At the outset of The Concept of Law , Hart rejects the idea that a jurisprudential inquiry into the law is merely an attempt to find a definition of the term law.
How to distinguish legal obligations from moral obligations? How to distinguish legal rules, or more broadly social rules requiring certain behaviour, from rules which merely describe a behavioural pattern of people without determining that they are required to act in such a way? Hart develops his legal theory on the basis of a contention of Austin's theory according to which law has to be understood as a set of rules issued by a sovereign. Hart rejects both, Austin's theory of rules as well as his theory of sovereignty.
According to Hart not all legal rules can be understood as coercive orders. While the rules of criminal law and torts might be explained in this way, the theory fails with regard to power-conferring rules. Such rules do not establish duties but enable individuals to create or vary legal relations private powers or confer public power on judicial, legislative, and administrative officers. With regard to the role of the sovereign in Austin's theory, Hart criticizes the conception of a person or body of persons whose orders are habitually obeyed and who does not habitually obey any other person: First, the requirement of a habit of obedience cannot explain the continuity of law which Hart identifies as a characteristic of every legal system.
Since Austin bases law on the habit of obedience and habits are not normative, they cannot confer a right or authority on the new lawmaker to legislate. And since habits of obedience refer only to an individual person, they do not indicate that the new legislator will be habitually obeyed in the way his predecessor was. Yet, it is one of the characteristics of a legal system that laws enacted by a legislator remain in force even after the legislator cedes his office. Finally, the reliance on a sovereign as the source of legal obligation precludes the idea of legal limitations of the legislature.
But in that case he would by definition no longer be sovereign because he would habitually obey another sovereign. Against the background of this criticism of Austin Hart develops his concept of law as the union of primary and secondary rules. Austin's failure to explain the existence and role of power-conferring rules in a legal system leads Hart to introduce the distinction between primary and secondary rules.
Secondary rules, on the other hand, are rules about rules. They provide how primary rules can be established, changed, or identified and control the operation of primary rules. Secondary rules are power-conferring rules. Hart illustrates the need for secondary rules by considering a primitive society which follows certain customary rules but does not have a legal system. Hart assumes that such a rule system could work in a small and homogenous community, but under different conditions it would exhibit its defects: Rules could not be changed in a deliberate process in order to react to changes in the social environment, thereby making the rule system static.
Disputes about whether the conditions of a rule are fulfilled or not could not be settled authoritatively, the rules would not be uniformly enforced, thereby making the rule system inefficient.
While it lacks a comprehensive centralized legislature comparable to the legislative branch of government in a municipal system, it consists of manifold instruments to translate community values into binding community rules. Bix -- Austin's Methodology? In conclusion, the international legal order encompasses mechanisms of law-making which transcend the image of a primitive social order as painted by Hart. In a more sophisticated legal system the primary rules prohibit or limit the use of force and self-help by private actors. Please verify that you are not a robot. According to Hart, the problem of inefficiency is mitigated further by the centralization of social pressure.
In order to remedy these defects Hart suggests that the primary rules of obligation be supplemented by a set of secondary rules. The static character of a rule system can be overcome by the introduction of rules of change which empower a person or a group of persons to formulate new primary rules. And rules of adjudication which empower individuals to make authoritative determinations of a violation of a primary rule in a specific case remedy the inefficiency of a primitive rule system.
In Hart's concept of law the rule of recognition is at the heart of the legal system and provides authoritative criteria for identifying primary rules. The rule of recognition is, furthermore, the ultimate rule of the legal system. The rule of recognition can therefore not be valid or invalid but can only be accepted as the guiding standard in determining the validity of other rules. The rule of recognition simply exists as a matter of social fact.
On the basis of the construction of a legal system as the union of primary and secondary rules, Hart develops the necessary and sufficient conditions for the existence of a legal system. Therefore, Hart requires a unified or shared acceptance of the rule of recognition by public officials. In this chapter Hart approaches the question whether international law constitutes law or international morality. Only in the last section of Chapter X does Hart ask whether international law is sufficiently analogous to the municipal legal order to be qualified as a legal system.
Hart identifies the absence of an international legislature, of courts with compulsory jurisdiction, and of centrally organized sanctions as the main sources for doubting the legal quality of international law.
For Hart international law consists mainly of primary rules, and he expresses doubts whether any secondary rules exist on the international level. He then examines in greater detail whether the lack of centralized sanctions precludes the characterization of international law as law.
According to Hart, no such sanctions exist in international law. Such a conclusion would be intelligible only if obligations were to be equated with the likelihood of a sanction in the case of disobedience. And this result, implied by the command theory, had already been repudiated by Hart.
Hart similarly rejects a different objection. According to Hart it may be argued that the existence of primary rules prohibiting the free use of force and rules providing for the official use of force as a sanction are a necessary condition for every municipal legal system. Since communities of individuals consist of human beings approximately equal in strength and with lots of opportunities to injure each other, natural deterrents alone would not be enough to guarantee observation of by the rules.
Violence between states is much more public than violence between individuals and entails the risk of third states getting involved. Adding the unpredictability of war, there is a naturally high level of deterrence for states to engage in violence. On the other hand, international reality is characterized by an unequal distribution of power and strength among states.
Their absence on the international level is therefore no reason to deny the legal quality of international law. The second obstacle to recognizing international law as law is the sovereignty of states. The conception of a state which is at the same time sovereign and bound by law is deemed to be radically inconsistent.
Hart rejects this assumption and adopts an understanding of sovereignty as autonomy.
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Hart rejects voluntarist theories of international law which, emanating from the concept of absolute sovereignty, view the basis of international legal obligations in an act of auto-limitation of the state. And they would fail to explain how an act of self-limitation could generate legal obligations. For such an act to result in a legal obligation there would need to be an already binding rule stating that such acts generate binding obligations. Finally, international law would not present itself as a legal order comprehensively based on state consent. In some cases this consent was only tacit consent and no more than a fiction.
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In the conception of Hart sovereignty is a legal concept. Unlike Austin, who claimed that the sovereign makes the rules, Hart claims that the rules define the scope of sovereignty. Finally, Hart rejects the proposition that international law should best be understood as international morality. Like rules of municipal law rules of international law are often morally indifferent.
This is the first ever collected volume on John Austin, whose role in the After years, time has come to assess his legacy. Law and Philosophy Library. Editorial Reviews. From the Back Cover. This is the first ever collected volume on John Austin, The Legacy of John Austin's Jurisprudence: (Law and Philosophy Library) - Kindle edition by Michael Freeman, Patricia Mindus. Download it.
They draw arbitrary distinctions which cannot be explained by moral standards. Formalism and legalism are characteristic features of international law and do not coincide with characteristics of morality.
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Unlike the rules of morality the rules of international law are subject to deliberate change. A moral foundation is also not needed to explain the binding force and obligatory character of international law. While it is necessary that the rules of international law are generally followed, there can be a variety of reasons why states obey their obligations. A moral obligation to abide by international law may be one of the reasons.
But there is no compelling reason why it has to be a necessary feature of international law. In the last section of Chapter X Hart turns to a closer analysis of the nature of international law. And it resembles a municipal system though only in function and content and not in form. Hart first emphasizes the differences between international law and municipal law.
He does not see any structures of international legislation which resemble a legislature in the constitutional system of the modern state. Neither is there a system of adjudication. That judgments of the International Court of Justice are generally followed by the parties could not compensate for the lack of a compulsory and comprehensive jurisdiction of any international court.
The same was true for decentralized sanctions in international law because the resort to war or other forms of forceful self-help could not be comprehensively adjudicated on in the international order. These defects had also not been overcome by the formation of the United Nations due to the general paralysis of the UN Charter enforcement provisions. Hart also rejects the proposition that international law contains a rule of recognition. Proposals to formulate a unified rule of recognition had not been successful. The pacta sunt servanda principle could not be considered the rule of recognition because not all obligations under international law result from contractual relationships.
The rules of international law had only to be accepted as standards of conduct and supported with appropriate forms of social pressure in order to be regarded as obligatory, binding, legal rules. International law would develop into a system more strongly resembling the municipal legal order also in form. At first view it seems that international lawyers can be satisfied with Hart's theory of international law. After all, Hart rejects Austin's doubts with regard to the legal validity of international law and affirms that international law is law.
He refuses to limit international law to morality. He refuses to equate it with power.
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His only caveat, that international law is different in form from the municipal legal system, is an assessment which international lawyers generally share. Should the expansion of Hart's general theory of law to the sphere of international law not therefore be welcomed by international lawyers? One of the reasons for international lawyers not to embrace Hart's concept of international law more euphorically is surely his refusal to accord international law the status of a legal system. Throughout The Concept of Law Hart repeatedly contrasts the developed municipal legal system with primitive social structures and with international law.
And although Hart shies away from explicitly characterizing international law as a primitive legal system, the general notion of international law as a less developed and thereby inferior set of social rules is clearly noticeable. In Hart's conception international law is on a par with the social rules of a primitive society, not with the more sophisticated municipal legal system.
This characterization raises the same relevance question as the qualification of international law as law. Just as one can deny the relevance of the question whether international law is law, one can doubt the relevance of the question whether international law is a legal system. But apart from a general jurisprudential interest in conceptual clarity and in theoretical concepts which fit legal practice, the latter question does have similar practical implications to the former question.
The assumption that international law does not constitute a legal system but is rather composed of a set of rules has the potential of consolidating the view of politicians and lawyers that international law is inferior to municipal law. Such a persuasion might lead political decision-makers — even if only subconsciously — to be more inclined to disregard the rules of international law when non-compliance is in their interest.
It would also be easier politically and publicly to justify such a violation: And judges in domestic courts, which in the age of globalization are increasingly confronted with the task of applying international law and determining the relationship between international law and their domestic legal system, 76 might in a similar way be less inclined to award international law a significant meaning: Why should inferior international law trump conflicting norms of domestic law?
Why should judges interpret domestic law and even constitutional law in compliance with international law when the last is deemed to be inferior? Against this background Hart's insistence that international law does not constitute a legal system seems almost as problematic as Austin's insistence that international law is not law at all. Before we analyse and criticize Hart's account of international law two grounds for a humble treatment of Hart need to be emphasized. Hart published The Concept of Law for the first time in At that time Hart was still under the influence of the end of World War II which, with the collapse of the League of Nations and its failure to prevent the war, hardly offered much inducement for a euphoric view on international law.
The founding of the United Nations did not brighten the prospects due to the almost immediate paralysis of the system of collective security at the beginning of the Cold War. Evaluating Hart's theory at the benchmark of the current state of international law is therefore less a critique of Hart than an attempt to convey his theory to the contemporary international system. Hart, furthermore, did not pretend to develop a genuine and comprehensive theory of international law.
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While this subordinate treatment of international law may by itself be subject to criticism it helps to explain potential shortcomings in Hart's theory. A critical assessment of Hart's concept of international law has to begin with the basic premises of Hart. Hart presents his theory as a general theory of law, as a theory which understands law as a social phenomenon which has to be captured not only by way of analytical jurisprudence but also by means of descriptive sociology.
And yet, Hart narrows his perspective and focuses strongly on a specific kind of law, namely the law of the municipal legal order of the modern state. This approach exhibits three shortcomings. First, while it presumes to be concerned with law in general it is strongly influenced by the peculiarities of law in the context of a municipal political system. However, there is no compelling reason why the concept of law as a general phenomenon should be more closely attributed to the modern state than to international law or to the law of more primitive societies.
In applying his general concept of law to the international legal system, Hart conveys an archetypical theory of municipal law on the international level. As a consequence Hart implies that the international legal system should be measured against the model of a municipal legal system. He presents deviations from this domestic model as pathologies of the international system. And he also seems to imply that the international legal system should develop in a way similar to the municipal role model. In light of the differences between the municipal and the international systems — both in function and in social structure — such an assumption is in need of a more compelling rationale which Hart does not offer.
Secondly, while Hart does not claim to develop a theory of the law of a specific municipal legal system, his model is designed to fit the modern constitutional state. But even with regard to this eclectic approach, Hart's analysis is significantly incomplete. It focuses almost exclusively on private law and criminal law. Relations governed by administrative law or constitutional law do not play a significant role in Hart's concept. For a general theory of law such an omission is remarkable and challenges the persuasiveness of Hart's antagonistic treatment of municipal law and international law.
The structural weaknesses of international law may seem distinctive if international law is compared with municipal private and criminal law. But are these differences similarly convincing when one compares international law with municipal public law? Does public law not structurally resemble international law more than it does private or criminal law?
Thirdly, the strong connection between the idea of a legal system and the municipal legal order is also doubtful in light of the way Hart arrives at his conception of a legal system. Hart starts his analysis with a description of a primitive social order which contains a minimum of primary rules but which does not have a legislature, courts, or officials.
Such a society is deemed to be defective in three ways: Within the context of the municipal legal order Hart finds the remedy for these deficits in the secondary rules of recognition, change, and adjudication. When this methodological approach is transposed to the analysis of the international legal order a weakness in Hart's line of argument is revealed: If the main distinction between the social rules of a primitive society and a more sophisticated legal system lies in the ability of the latter to address the problems of uncertainty, of the static character of the social rules, and of the inefficiency of the system in enforcing the rules, than there is no compelling reason why an international legal order needs to resemble the domestic legal order in form — the lack of which is the main reason for Hart to qualify international law not as a system but only as a set of rules.
It seems more convincing to evaluate the nature of the international legal system on the basis of whether it contains rules and mechanisms which perform the three functions which Hart deems necessary for the existence of a legal system. To formulate it more generally: According to Hart, A will become a more sophisticated legal system if it embraces certain criteria x which help it overcome its defects. A plus x therefore equals a more sophisticated legal system A x. Assume furthermore that B is a primitive municipal social system. In order to become a sophisticated legal system it must embrace the criteria x and turn into B x.
According to this logic, the same should apply to the international social order C. If C is to develop from a primitive social order into a legal system it needs to incorporate the criteria x. There may be a strong probability that C x will, at least to a certain degree, resemble B x in structure and form. But this is not a necessary result.
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The differences between C and B as social systems can be so significant that C x and B x are very different in structure and form. But this does not mean that C x is less of a legal system than B x. What makes C x a legal system is x and not a similarity to B x. Therefore, Hart's framework for analysing international law should be viewed in a different light and modified. Rather than asking whether international law encompasses legislative, judicative, and executive structures comparable to the municipal system in form , it is more convincing to ask whether the international order comprises structures which effectively fulfil legislative, judicative, and executive functions which overcome the defects of a primitive social system.
In order for international law to qualify as a legal system it needs to be able to perform these fundamental functions attributed to the law. If it fulfils this requirement there are no grounds to deny international law the status of a legal system. Hart offers no compelling reason why a legal system necessarily would have closely to resemble the archetype of the municipal legal order of a modern constitutional state.
In the following I will therefore analyse whether at the beginning of the 21st century the international legal system contains structures of law-making, adjudication, and law-enforcement which distinguish it from a simple social system and which help overcome the defects of such a primitive system. In light of these considerations, are Hart's objections against the existence of international legislation sustained?
Or does the international legal order consist of secondary rules of change? He rather stipulates that international law resembles in form a simple regime of primary law or custom, and that some theorists have minimized the formal differences and exaggerated the analogies between international law-making and municipal legislation. For Hart legislation necessarily contains a vertical element of subordination between the legislator and the persons or entities governed by the law. At first sight international law does not seem to contain such law-making mechanisms comparable to those of the domestic legal system.
International treaties are regularly adopted by majority vote or by consensus without a formal vote. But they challenge the idea of the treaty-making process as solely dominated by the will of sovereign states. Hart uses the notion of custom as a contrast to the more flexible and sophisticated process of legislation in a modern municipal legal system. With regard to the contemporary understanding of customary international law, this antagonism has to be relativized.