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Law, morality and positivism

Published online by Cambridge University Press:  02 January 2018

D. N. MacCormick
D. N. MacCormick*
Affiliation:
University of Edinburgh
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Extract

‘The existence of law is one thing; its merit or demerit another. Of all the sayings of John Austin, none seems to make a simpler appeal to the plain fact of the matter than that one. We can argue for days about the merits or demerits of the Income Tax Acts or the latest effusion of trade union legislation. That such enactments are however laws is not a subject for lengthy nor inconclusive debates.

As to income tax, some may agree with Robert Nozick. They may think that state-imposed taxes on income are equivalent to slavery. The individual who is forced to pay two fifths of his earned income in tax is working as a slave two days in every week, for the fruits of his labours on those days are compulsorily exacted from him and paid over to other people in cash or in kind.

Type
Research Article
Information
Legal Studies , Volume 1 , Issue 2 , July 1981 , pp. 131 - 145
Copyright
Copyright © Society of Legal Scholars 1981

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References

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

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

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 Erskine, John, Principles of the Law of Scotland (1st edn. Edinburgh, 1759)Google Scholar;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 Raz, J., The Authority of Law (Oxford, 1979), chapter 4Google Scholar; 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 Harris, J. W., Law and Legal Science (Oxford, 1979) pp. 52–63 Google Scholar.

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

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

26. Dworkin, Ronald, Taking Rights Seriously (London, 1977) chapters 2 and 4Google ScholarPubMed. 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. Finnis, John, Natural Law and Natural Rights (Oxford, 1979) pp. 2357, 239–242Google Scholar, 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 Bauman, Zygmunt, Hermeneutics and Social Science (London, 1978)Google Scholar and MacCormick, H. L. A. Hurt, chapter 3.

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

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

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 Duff, R. A., ‘Legal Obligation and the Moral Nature of Law’, 1980 Jur. Rev. pp. 61–87 Google Scholar, 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.