Anatomy of Law
The following is a paper I wrote for a class I'm taking in Foundations of the Common Law. It's legal theory, but I deliberately tried to use non-specialized language, so hopefully non-lawyers will be able to understand and enjoy it.
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Foreword
The following is an ‘essay’ in the traditional sense of that word: an open-ended set of personal reflections with no pretension as to exhaustiveness. It is quite literally a (more or less crude) attempt to lay the groundwork for a new way of thinking, a new paradigm—or at least to take the first halting steps towards making such a thing possible. Put another way, the author’s purpose was not to undertake a scientific inquiry on the content of the law in any one area or in any particular one of its many aspects, but rather to reflect, through a series of thought exercises, on its essential nature and role in human affairs.
The author concedes that the paradigm put forward here may very well already exist in other minds, and even been the subject of publication by others, although if so he is not aware of it, owing to the limited extent of his legal education. This does not rob the exercise of all value, although it may impugn his pretension of originality. Be that as it may, the composition of this essay has at the very least made that new mode of thought possible in the mind of the author; or, to the extent that this was already the case, has given it new clarity. If the purpose of legal education be to provide to those who are subject to its rigours with understanding of the law, or improve such understanding as they already possessed, then this exercise has, if nothing else, served that purpose.
The following reflections were prompted and inspired by the reading of four famous essays in legal theory: “The Path of the Law”, by Oliver Wendell Holmes, “Positivism and the Separation of Law and Morals” by H.L.A. Hart, “Positivism and Fidelity to Law” by Lon L. Fuller, and “Hard Cases” by Ronald Dworkin. Holmes and Hart are both well-known champions of legal positivism, while Fuller and Dworkin are equally well-known as amongst its most powerful critics. Indeed, Hart’s essay, which appeared in the Harvard Law Review, is what prompted Fuller’s “Fidelity to Law”, which was published in the HLR as a response to Hart, and their debate is now, if one can put it so grandiosely, legendary. In crafting this essay, the author has attempted to make it accessible to readers not intimately familiar with these particular works. Evidently, such familiarity would improve the reader’s enjoyment.
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The existence of law is one thing; its merit or demerit is another. Whether it be or be not is one enquiry; whether it be or be not conformable to an assumed standard, is a different enquiry – John Austin
Mise en scène, or “Sketch”
Imagine the following scenario: a courtroom, to which a man, having been convicted of a crime some weeks previously, has come to receive his sentence. The crime was not particularly heinous, but rather an obscure sort of securities fraud. The jury heard competing expert evidence from both sides and ultimately pronounced his conduct to be criminal. The man’s counsel tried to reach a settlement with the prosecution on the sentence but to no avail. Consequently, that decision has been left up to the judge.
The judge then emerges from her chambers, takes her place upon the bench, and announces that she is sentencing the man to five years’ imprisonment, to begin immediately. Armed agents of the court come forward to take custody of the man and usher him out of the courtroom towards his ultimate place of confinement.
This is the sort of scene commonly associated with the law. But where precisely in all of this is ‘the law’?
Some might think it trite to point out that ‘law’, like ‘justice’ or ‘fairness’, is not something to which one can point. However, legal positivism presumes that law is a knowable datum, whose boundaries can be circumscribed and whose content can be precisely described. Whenever one insists that there is a difference between law and ‘morals’, or law as it ‘is’ and law as it ‘ought to be’, one is asserting that fact. For what is the use in insisting on such a difference unless one believes that the present state of being of the law can be known and used as a basis for human action? And if this view is correct, then there ought to be something in the above scenario that one can point to and say: “this is law”.
Unfortunately, the above scenario presents a number of problems for this view. For instance, some things in the above scene are knowable, while others are not. The state of mind of the jurors, for example, is not knowable, at least not in a definite way. A state of mind is too ephemeral by nature to be accurately described, and in any case there is no residue, save memory which is itself ephemeral, to which one can look to confirm the accuracy of one’s description.
Granted, some might be inclined to argue that the content of the criminal statute on the basis of which the man, let us call him Mr. Humpledink, was convicted is knowable to a very precise degree. This proposition presents a further set of problems relating to linguistics, but let us assume for the moment that it is true. Even so, can one really say that the statute is the law? This cannot be a complete answer, because the statute did not say “Mr. Humpledink must go to prison after having told Mrs. Wembley that the value of shares in Cryonics Inc. was about to increase, thus prompting her to purchase a large quantity of shares, thus artificially and temporarily driving up the price, at which point Mr. Humpledink sold his own shares, leaving Mrs. Wembley with many shares that ultimately were worth far less than what she paid for them.” The statute contained very general statements about a type of conduct that constitutes ‘securities fraud’, and the jury, using their personal experience, knowledge gained at trial, and judgment declared that the acts of Mr. Humpledink corresponded to those outlined in the criminal statute. We have a phenomenon, the decision of the jury, which can itself be described to a certain extent. But the precise nature of the link between that phenomenon and the criminal statute is inherently unclear.
A further problem lies in the conduct of the armed agents of the court. These men acted upon the judge’s orders without hesitation to take Mr. Humpledink into custody and convey him to his place of confinement. But imagine for a moment that the judge was in fact mistaken in the instructions she gave the jury, that the verdict is incorrect at law and will very shortly be overturned by an appellate court. On what basis then are these armed agents coercing Mr. Humpledink to follow them to prison? It cannot be ‘the law’, for the law as it ‘is’ does not allow the jury to declare Mr. Humpledink guilty. Perhaps, one might argue, there is another statute that says that armed agents of the court must always obey the judge when, on the basis of a guilty verdict or plea, he orders to them to confine a particular person, irrespective of the merits of the verdict at law. But the guards were not referred to this other statute, indeed they may not even know of its existence. Perhaps they assumed, on being hired, that they must simply obey the judge in all things and left it at that. Either way, their actions were not directed by a ‘knowable’ text of law, at least not directly, but rather by a belief that the law demanded such action.
The purpose of the foregoing was not to analyse exhaustively the phenomenology of the scene in the courtroom, which was not itself depicted in great detail and with great fidelity to events as they usually unfold in a criminal trial, but merely to highlight in a preliminary way some of the problems inherent to treating ‘law’ as something knowable. Many words derive their meaning from the object which they signify, such as ‘book’ or ‘chair’, and one can argue that such things are knowable, but law does not signify a discrete object, although certain objects, such as statutes, counsel’s robes, judges, and prison bars, may be associated with it.
In many ways, the scene in the courtroom resembles a scene in a play, and the resemblance will be developed throughout this essay. In a play, all of the actors agree to coordinate their actions for a two-hour period on the basis of a particular text. Each is given responsibility for enacting one part of that text, and has considerable discretion over how that will be done. Each may in fact have been selected for their particular strengths at enacting some specific part. Ultimately, their interpretation will rest on their personality, their personal experiences, their knowledge and abilities. The action as a whole will be supervised by a director, who ensures some uniformity in the way in which the actors interpret the text through their actions, and is vested with final decision-making power over which interpretations will be used in the actual performance of the play. This power is compounded by the fact that the director will most likely have chosen the actors personally, such that their strengths and interpretive inclinations correspond with his own views on how the play should be enacted.
The ultimate impact that the play will have on individual members of the audience will depend to a certain extent on their own idiosyncrasies. However, notwithstanding differences of temperament, experience or knowledge, the play will probably be intelligible to an overwhelming majority of the audience. Perhaps a visitor from a foreign land who barely speaks the language, has only been in the country for a few days, and is not familiar with the concept of a play will not understand anything of this peculiar procession of events taking place on the stage. But for most members of the audience, there will be a shared pool of knowledge and, more importantly, shared expectations, that will provide some context and structure to the phenomenon of the play and contribute to its meaning as they understand it. Indeed, the influence of this semiotic consensus may be so strong that many lay observers—i.e. those not predisposed by education or temperament to inquire too deeply into the inner workings of the dramatic arts—will fall into the trap of believing that the director’s choices represent the ‘correct’ interpretation. His many years’ experience and great erudition in all things literary and dramatic lend his opinions great weight, and the combined effect of such authority and so evident and essential a social consensus provide strong inducements, whether consciously or unconsciously, to believe that the play is univocal.
Of course, in the process such observers will overlook the fact that the play is not merely a text by Shakespeare but a whole series of enactments on stage, a series of decisions by actors and the director, and an intricate web of shared meaning (in terms of language, artistic forms, and cultural norms) amongst the audience, the actors and the director. Such a thing is intrinsically polycentric and to call it univocal would be nonsensical. But, in a great collective act of metonymy the audience conflates its experience of semantic consensus with an object forming a part of it, the text of the play. This act is likely instinctive, most certainly intuitive, and its purpose is to make the incredibly complex more intelligible and the inherently ephemeral more tangible. Moreover, it grows ever more likely the less expertise one has in the dramatic arts. It may be that something important is lost in the process, or it may be that such a conceptual leap is in fact necessary in order for plays to successfully exist as plays. Although the author cannot answer that particular question, it will be returned to later on.
The purpose of the foregoing analogy was to lay in a concrete way some of the conceptual framework which the author intends to develop as this essay progresses. The relevance of an artistic endeavour to the nature of law will be made clear forthwith.
Act I: Proceeding backwards - law and the bad man
Far be it for this author to presume to dictate in the abstract how one should best go about understanding the law. It is in all likelihood far more useful first to consider the approach suggested by more learned minds than his. Holmes, whose qualifications in this regard hardly need restating here, suggested the following:
The first thing for a business-like understanding of the matter is to understand its limits, and therefore I think it desirable at once to point out and dispel a confusion between morality and law…. You can see very plainly that a bad man has as much reason as a good one for wishing to avoid an encounter with the public force, and therefore you can see the practical importance of the distinction between morality and law. A man who cares nothing for an ethical rule which is believed and practised by his neighbours is likely nevertheless to care a good deal to avoid being made to pay money, and will want to keep out of jail if he can.
Holmes builds on this notion to argue that law is the business of predicting the behaviour of courts; that is, of predicting in which ways the bad man can expect the coercive power of the state to fall upon him: “the prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law.”
Holmes’ view poses three problems which immediately come to mind. The first is that he does not supply any definition of morality, neither here nor elsewhere in his essay. As Fuller noted of Hart, and the comment is equally apt here, Holmes’ primary concern seems to be to “preserve the integrity of the concept of law.” Those sharing this point of view
Are like men building a wall for the defence of a village, who must know what it is they wish to protect, but who need not, and indeed cannot, know what invading forces those walls may have to turn back.
Such an approach is sloppy from a conceptual standpoint. One cannot possibly declare that law and morals are separate without first defining what is meant by each term and them comparing them. In the case of positivists like Holmes and Hart, morality seems merely to be defined as non-legal standards of human conduct, which of course is circular.
The second problem with Holmes’ view is that it overlooks an important aspect of legal practice. Without a doubt, much of what lawyers do, especially solicitors, is predict what courts will do, advising clients on the likely repercussions of acts they are considering doing or have already done. However, this overlooks the persuasive function of the barrister, whose job it is to convince the court that it ought to do one thing and not another. This is distinct from the lawyer’s role as ‘prophet’ of the law, and much more creative in nature. Moreover, these dual roles are related and not easily separated. While part of a lawyer’s ability to predict the court’s behaviour will undoubtedly be based on knowledge of the applicable case-law and statutes, or so-called ‘positive’ law, part will also certainly be based on his personal experience in attempting to persuade the court and negotiating with opposing counsel. This will reflect not only the knowledge he has gained of the courtroom, but also of his own abilities and what outcomes he is capable of securing and at what cost. Thus, the ‘law’, as a prophecy, varies from one lawyer to the next.
Finally, Holmes presents a peculiarly lawyerly way to view the law, which is evidenced by his reliance on the notion of a ‘bad man’ to define what is law and what isn’t. Without wanting deliberately to be uncharitable to Holmes, the author thinks it fair to say that this notion is ill-conceived and in fact rather silly.
As Holmes himself says later on, “I hardly think it advisable to shape general theory from the exception.” In terms of the law, the bad man is rather the exception than the rule. The overwhelming majority of individuals in a society which respects the rule of law will obey the law without needing to be constrained to it. While it is certainly useful and necessary for a legal system to possess the wherewithal to forcibly exact obedience from those who will not obey it willingly, it would be absurd to suggest that the entire system could possibly be based on the assumption that all rules will only be obeyed because disobedience can and will be punished.
The reason for this is very simple: if anything more than a very small minority of individuals ceased obeying the law, no legal system would possess the means to employ naked coercion against all of them. Even police states, where a much larger proportion of public expenditures is devoted to maintaining ‘law and order’ and ensuring that the people are obedient, rely on a substantial consensus in society in order to operate. No police state has ever existed that did not correspond in a substantial measure to the expectations and desires of the people. However odious Hitler may ultimately have shown himself to be, he was democratically elected before he was a dictator, and the German judiciary enforced, and the people obeyed, his tyrannical statutes to the very end. One has only to note the very prominent role of propaganda in such societies to see that this is true. Totalitarian states expend enormous effort convincing their subjects that the state is acting in the interests of society, and we should not let our personal opinions as members of a democratic society about the legitimacy of such measures blind us to the central dynamic at play. It may very well be that one of the primary reasons why the acts of police states correspond to the expectations and desires of the people is that these have been planted or manipulated through propaganda, but that is neither here nor there. Viewed from our paradigm, such propaganda might easily be construed as a form of coercion, but if so surely it is very different in nature than that referred to by Holmes. What cannot be doubted is that propaganda helps generate the social consensus needed for individuals to voluntarily choose to obey the laws and other edicts of such states.
A further, and perhaps more palatable example, can be found in our own use of propaganda during the two world wars. The Allied governments of the day understood that they could not possibly enforce conscription on every single conscript. In order to work, conscription relied on voluntary obedience; otherwise, more men would be needed to enforce conscription than were being sent to the front. Thus, governments mounted massive propaganda campaigns to legitimize the war effort and persuade, using the moral language of ‘duty’, ‘patriotism’, ‘honour’ and ‘freedom’, conscripts to believe that they had a moral obligation to report for duty.
If a particular law is not obeyed by a large proportion of the population, it becomes to all intents and purposes unenforceable. This may remain an isolated incident, as in the case of the prohibition on alcohol in the 1920’s in the United States, or the prohibition on marijuana use in Canada today. However, if an entire legal system is systematically ignored by a large proportion of the population, this can lead either to a general breakdown in order without any particular centre of gravity, or a full-scale civil war, depending on the nature of the group disobeying the law. However, in either case the claim of those rules to being ‘law’ becomes extremely tenuous, at least from a practical standpoint.
Act II: Legal systems vs. individual laws
It seems opportune at this moment to consider a distinction made by Hart, and with which it would be difficult to reconcile the position of Holmes, at least in its general formulation provided in the statement quoted above:
It may well be said that, though [the distinction between law and morals] is valid and important if applied to any particular law of a system, it is at least misleading if we attempt to apply it to “law,” that is, to the notion of a legal system, and that if we insist, as I have, on the narrower truth (or truism), we obscure a wider (or deeper) truth…. We must avoid if we can the arid wastes of inappropriate definition, for, in relation to a concept as many-sided and vague as that of a legal system, disputes about the “essential” character, or necessity to the whole, of any single element soon begin to look like disputes about whether chess could be “chess” if played without the pawns.
This qualification is seductive, and appears instinctively correct to one with the pragmatic instincts of a jurist. To those whose every habit of thought presumes the existence of laws and assumes that they are for the most part easily identifiable, it may seem trivial to insist on the process by which one identifies a law as a law. Surely it is true that within any society possessing what is recognizably a legal system the standards by which one distinguishes law from ‘not-law’ must be beyond all debate. The question, in Hart’s view, is not “must one distinguish between morals and the legal system as a whole”, but rather “must one distinguish between morals and a properly adopted and enforceable law.” The debate centres on the proposition, put forward by advocates of theories of ‘natural law’, that such a properly constituted law simply cannot be law if it violates essential morality.
Put in such stark terms to a reader in the present day that proposition may seem absurd, so it is necessary to provide some context in order for the question even to make sense. When Austin advanced his theory of legal positivism, it was in response to writers such as Blackstone, who argued that the “laws of God are superior in obligation to all other laws; that no human laws should be suffered to contradict them.” Austin’s argument was that an act of Parliament or a judicial holding was law and must be obeyed even if it contradicted Scripture. Although not entirely unthinkable, such arguments would today rarely see the light of day (indeed, that fact is instructive, and will be returned to later). However, Hart raised the question in a different and still topical context, i.e. that of how German courts in the post-war period should treat the laws passed by the Third Reich. He criticized one judgment in particular, which set aside what had been law under the Nazis for the reason that it “was contrary to the sound conscience and sense of justice of all decent human beings.” This decision, by a court of appeal, was “followed in many cases which have been hailed as a triumph of the doctrines of natural law and as signalling the overthrow of positivism.” In Hart’s view, if this law was to be set aside (which he considered just and right), it should be done by a frankly retroactive statute and not by a court. He could not countenance the notion that a court might recognize something as law and then refuse to apply it by citing moral reasons.
Hart’s position was that in those cases where the content of the law is easily ascertainable—a large majority of cases, in his view—the court’s application of that law should not be tainted, altered or prevented on the basis of ethical beliefs. This proposition presents two problems, the first having to do with the nature of legal interpretation, the second being more fundamental and theoretical in nature. We shall deal with the second of these first as it is directly relates to Hart’s distinction between laws and ‘legal systems’.
As noted earlier, Hart’s distinction is seductive for the trained mind of a professional jurist. However, not only is it inaccurate, but it conceals an important truth of great practical significance. The author will grant that it is possible to become a reasonably adept technician of the law without ever having contemplated the architecture of the system as a whole, much as one can use a building without having designed it or studied its blueprints. However, it cannot be said that such a technician truly understands the law. To the practical mind, it may be tempting to say that all one really needs is to be able to recognize a door when one sees it and to distinguish between corridors and air-ducts, or to be able to distinguish between law and not-law. However, if one’s purpose is to inquire into the very nature of law so as to understand its limits and its inner workings more fully, such a superficial knowledge cannot be satisfactory. Moreover, quite aside from satisfying one’s curiosity, there are a variety of problems faced on a fairly regular basis by a legal technician that cannot be solved unless he comprehends the full architecture of the legal system in which he is operating.
Situations are regularly encountered by courts and legal counsel in which there is no ‘clear’ answer. Hart would willingly concede that in such ‘hard cases’ a judge may legitimately ‘legislate’ to fill in gaps in the existing law. But how should he go about designing this new outgrowth of the law? If one were to suggest that a contractor build a passageway between two skyscrapers at the 40th storey without first examining the blueprints of each building, the health of one’s wits would surely be called into question. Likewise, in order to legislate in the ‘penumbra’ of the law without undermining the soundness of the entire edifice, one must properly understand the workings of the legal system as a whole. That is, one has to grasp how it is that law comes to be recognized as law.
This statement is robbed of all controversy if we consider a topic such as that of same-sex marriage in Canada. Imagine if the Ontario Court of Appeal had simply declared that the old definition of marriage violated section 15 of the Charter of Rights and Freedoms citing only non-legal ethical authority. Public outrage would have been extreme and political reactions quite different from what they ultimately were. However, the court in fact engaged in a long process of legal rationalization, using a variety of accepted legal principles to interpret an ‘unclear’ provision of the Constitution and create a new rule of law. While some were still uncomfortable with the outcome from a moral standpoint, none but the most extreme reactionaries would deny that the judgment of the court was recognizably ‘law’. An obstinate legal pragmatist might argue that public opinion is irrelevant, that the fact that a court pronounced a rule to be law made it so. This of course begs the question of why we accept that judges can ‘make’ law, but a more practical concern is that of how this decision will be treated by other courts. For if that decision in fact violated the inner morality or standards of the legal system whereby rules come to be recognized as law, then other courts might find excuses not to apply it, or a higher court might simply invalidate it. This undoubtedly is part of what Dworkin aimed at with his notion of a legal Hercules, a lawyer of “superhuman skill, learning, patience and acumen … who accepts the main uncontroversial constitutive and regulative rules of the law in his jurisdiction,” and who might develop “theories of what legislative purpose and legal principles require” in a ‘hard case’ where no clear rule exists. Such a legal Hercules will employ his understanding of the architecture of the law to create a new outgrowth consistent with the whole.
Regardless of how perfectly any single ‘human’ jurist approximates this particular ideal, clearly the distinction between a law and a legal system is specious. One can only recognize something as law if one accepts the standards of a given legal system. A legal system is therefore a self-contained epistemology, which determines how one ‘knows’ what is law and what isn’t. Having framed the question in this way, it is possible to answer one of Hart’s assertions that seems intuitively so unassailable, and which presents a grave problem for our earlier argument, i.e. that “a rule of law may be said to exist though enforced or obeyed in only a minority of cases, but this could not be said of a legal system as a whole.” True, in a given legal framework with a clear epistemology, something may validly be considered a law though it be unenforceable or widely disobeyed. But such events must remain a rarity. Any legal system that habitually adopted unenforceable rules would inevitably disintegrate because the very meaning of ‘law’ would become corrupted. Consequently, any workable legal epistemology must have as a basic, if perhaps un-stated, premise the notion that laws must correspond to a social consensus in order to be laws.
Act III : Legal interpretation - the core and the penumbra
Such an approach is hinted at by Fuller. Let us consider the following statements:
[Hart] insisted throughout on the importance of keeping sharp the distinction between law and morality. The question may now be raised, therefore, as to the nature of these fundamental rules that furnish the framework within which the making of law takes place. On the one hand, they seem to be rules, not of law, but of morality. They derive their efficacy from a general acceptance, which in turn rests on a perception that they are right and necessary.
(…)
No written constitution can be self-executing. To be effective it requires not merely the respectful deference we show for ordinary legal enactments, but that willing convergence of effort we give to moral principles in which we have an active belief.
What Fuller is saying, if only obliquely, is that law, far from being a discernable object, is in fact comprised of a nexus between action and communication. Nowhere is this more true than in the process of legal interpretation, although this truth is easily overlooked.
Hart famously classified all cases into two groups: those falling within the ‘core’ meaning of a legal rule, and those falling in its ‘penumbra’. According to Hart, all words, and thus all rules, which are made of words, must have a “standard instance”, a core of “settled meaning” wherein there are no doubts about its application. Certain cases will fall within the penumbra of meaning, in which the rule is “neither obviously applicable nor obviously ruled out.” For Hart, this seemed to settle the question of the existence of law. Fuller dealt with this analytical construct at great length in his essay, and this author will defer to his criticisms, which surely are more insightful and pithy than any he could offer. It will suffice for our present purposes to point out the following: that interpretation is the act by a conscious mind of apposing meaning on a particular phenomenon. We use ‘phenomenon’ as opposed to ‘object’ or ‘thing’ in order to include all of those more ephemeral things, such as actions, concepts, emotions and impulses, which enter human consciousness and receive from it some meaning. Whether the meaning of a symbol or event be ‘clear’ or ‘unclear’ does not alter the essential nature of the action being posed. The act of giving meaning can be unconscious, as when one hears words or sees an object with which one is intimately familiar. It can also be conscious, when no meaning presents itself instinctively to one’s mind, and one must consciously choose to provide a particular phenomenon with meaning. But in either case the action is the same. Thus, all law, whether it be laid out ‘unambiguously’ in a statute, created by judicial holding, or imagined by a businessman deciding whether or not the act he is contemplating constitutes a breach of contract, is a human action.
Act IV: Law - an ongoing effort to create that which ought to be
This latter point raises the issue this essay ultimately aims to deal with, namely the origins of legal meaning. Hart inadvertently and quite despite himself glanced upon the essential conclusion being pursued by this author when he said the following:
Undoubtedly, when Bentham and Austin insisted on the distinction between law as it is and as it ought to be, they had in mind particular laws the meanings of which were clear and so not in dispute, and they were concerned to argue that such laws, even if morally outrageous, were still laws.
Here, legal clarity is being conflated with a lack of dispute over meaning. Now, a lack of dispute over meaning can result from two situations. Either the parties involved are not aware that their interpretations differ, or there is a consensus amongst them as to the meaning of the statute. Given that the legal profession is one that can fairly be said to be quite obsessed with clarity, and one certainly not shy of confrontation, it is unlikely that the former scenario might explain any lack of dispute over the meaning of certain rules of law. It follows then that there must be a consensus amongst all those involved as to the meaning of those rules. That realisation is pregnant with implications. It implies, first and foremost, that clarity results from a common understanding of what the law is and what its purposes are. That common understanding is a state of mind shared by human beings, not some immutable thing to be signified by the word ‘law’.
The full import of this notion can be seen if we examine more closely the origins of legal positivism. Austin had been reacting to the view of Blackstone, which although it had been put forward a hundred years earlier was still widespread in Austin’s day, that the laws of God could vitiate the laws of man. Both Blackstone and Austin lived in a time and place where the vast majority of the population accepted the authority of holy scripture, but in Austin’s day the English state and society were undergoing massive and unprecedented change. In the many centuries during which English society had been primarily pastoral, the need for state regulation was rather small except in limited areas, such as commercial law or maritime law, centred mostly on London and a few other major ports, which affected the general population very little. By the time Austin was delivering his famous lectures, the political economy of English society had been, to put it crudely, turned upside down. Commercial and industrial activity now employed a large proportion, if not an outright majority of the population, and the state was much larger and wealthier as a result of the productive forces unleashed by the Industrial Revolution. Holy scripture simply was not equipped to regulate the increasingly complex economic and social institutions being created by the new England; only new, ‘human’ laws specially adapted to such circumstances could do so. Austin was fighting the tendency of some, which he found retrograde, to want to regulate the new industrial society with moral codes from another time. The best and most effective way to fight this tendency was to affirm the supremacy of human law over ethical or scriptural norms. Austin’s labour was a battle for the ‘hearts and minds’ of Englishmen, to create a new consensus around the principle that only human laws must imperiously govern human affairs.
This brings us to the fundamental nature of law. Nothing is more natural for human beings than to imagine a state of affairs that is preferable to the one in which they find themselves, and to act in order to bring that about. Inevitably, man being a social and political animal, such ideals of the way things “ought to be” are formed in dialogue with family and fellow members of society. Sometimes that which is sought is a mode of social organization which is thought to be able to bring about maximum prosperity and happiness. Sometimes it is merely the resolution of conflicts between competing interests. Other times it may be to bring human action in line with what society imagines to be divine will.
In all cases, such imaginings set in motion a process of dialogue followed by action, and then evaluation of the outcome in relation to the posited ideal. In smaller social groups, this process can be conducted on an ad hoc basis. Small groups are easily managed, communication is not complicated and consensus fairly easily reached. However, conducting that process on the basis of very large social groups is vastly more complicated. Complete and inclusive dialogue is difficult and even in some cases impossible. Coordinated action is only possible with the centralization of decision-making powers, which in turn requires that all members of the group accept as a most basic rule that they are required to recognize the authority of that centralized agency irrespective of their personal views on a given matter. The centralized authority, incapable of considering each and every problem or issue casuistically, will be forced to posit general rules which it believes make good outcomes more likely. Evaluation of outcomes becomes overwhelmingly complex and tends to fall in the hands of trained specialists, most people having neither the time nor the abilities to conduct detailed evaluations themselves.
Our conclusion should by now be obvious. ‘Justice’ represents a society’s ideal, its notion of the way things ought to be. Societies engage in a process of action and communication to bring about that ideal or change it. The larger and more complex a society is, the more formalized such a process will become. This process is in our society referred to as law. Law is a collective endeavour, a process of shared meaning, coordinated action, and voluntary submission to authority. Most people respect the law not because of its moral content, nor out of fear of punishment, but because it represents a process they have set in motion, and in which they participate, to bring about that which ought to be, a ‘just’ state of affairs in all things, be it discrete conflicts or social organization. As de Tocqueville noted so long ago, nowhere are laws more fervently respected than in democratic countries, where the people have a sense of ownership over them. Judicial interpretation is founded on this social consensus, which is so fundamental and so taken for granted that it becomes almost invisible. But an effort to understand that this consensus lies at the root of law is necessary in order that judicial actors might properly fulfil their function in advancing the content of justice in those areas where it is not yet established and the meaning of law not clear.
Act V: A need for the positivist faith?
The preceding paragraphs contain some sweeping generalizations, as is unfortunately necessary in so short a piece of writing. Nevertheless it is clear that the position set out in them seems squarely at odds with the very notion of legal positivism. The author would like to suggest some thoughts which may redeem the positivist faith.
There is often a very great difference between the subjective experience of a phenomenon and its description by an outside observer. Nowhere is this more evident than in the case of pain. Pain can be described as a set of electro-chemical impulses that travel from nervous endings near a point in the body being damaged in some way to the brain, setting off a further chain of electro-chemical impulses that can be described according to their distribution pattern and molecular structure. However, such a clinical, ‘scientific’ description would completely fail to describe the experience of pain felt by the conscious mind. So too may it be with the difference between legal positivism and the more macroscopic view of the law taken by thinkers such as Fuller and Dworkin.
There is no question that for the thinking legal mind, the law ‘exists’. The meaning ascribed to statutes and case-law by such a mind is so visceral that its truth can scarcely be doubted. Indeed, this author would venture to say that a large part of legal training consists in reconstructing the minds of students such that they are forever searching for the law, never doubting that it exists though it be hard to find. The ‘correct’ sources of law are drummed into them over and over again for many years, and this process persists during the early phases of professional training under their more experienced peers. It is a process whereby faith in the existence of law is manufactured, if it did not already exist, and deepened if it did. This faith consists primarily in, firstly, believing that a legal rule exists which can solve the issue, and secondly, believing that this rule will satisfy those to whom we present our legal arguments.
It is perhaps unlikely that most jurists would be able to perform the functions of a legal technician efficiently and effectively if they were trained to view the law as a compendium of fluctuating moral beliefs aimed at producing some consensus-based view of the social good. Here the author would like to return the reader to the play analogy drawn in the opening part of this essay. A play can scarcely be understood if the audience persistently keeps in the forefront of its mind the notion that it is collectively, with the actors, engaging in an elaborate inter-subjective exercise in the fabrication of meaning. A certain ‘suspension of disbelief’ is required in order for the play to be intelligible as a phenomenon in its own right.
Similarly, in order to function as law, legal rules must have some regularity. Or rather, they must be believed to have some regularity, such a thing being largely subjective. This observation becomes more pointed if we substitute ‘regularity’ for ‘predictability’. As noted earlier in our comment on Holmes, the predicted outcome of a legal action can depend greatly on who is doing the predicting. But irrespective of that, predictions cannot be made unless one truly believes that they are possible. And believing that requires making certain assumptions about the nature of law. When predicting natural phenomena, we rely on deductive and inductive reason to make statements about an expected future occurrence. So it is with legal prediction. But of course, that assumes that law exists and that it is subject to reason. However, given that one of the purposes of law is to make human affairs more predictable, believing in one sense does make it so. Society, in its ‘legal activities’, will behave in a way that is predictable, thus compounding (or perhaps giving rise to) the illusion that law is a knowable thing whose behaviour is predictable according to the laws of reason.
*****
Foreword
The following is an ‘essay’ in the traditional sense of that word: an open-ended set of personal reflections with no pretension as to exhaustiveness. It is quite literally a (more or less crude) attempt to lay the groundwork for a new way of thinking, a new paradigm—or at least to take the first halting steps towards making such a thing possible. Put another way, the author’s purpose was not to undertake a scientific inquiry on the content of the law in any one area or in any particular one of its many aspects, but rather to reflect, through a series of thought exercises, on its essential nature and role in human affairs.
The author concedes that the paradigm put forward here may very well already exist in other minds, and even been the subject of publication by others, although if so he is not aware of it, owing to the limited extent of his legal education. This does not rob the exercise of all value, although it may impugn his pretension of originality. Be that as it may, the composition of this essay has at the very least made that new mode of thought possible in the mind of the author; or, to the extent that this was already the case, has given it new clarity. If the purpose of legal education be to provide to those who are subject to its rigours with understanding of the law, or improve such understanding as they already possessed, then this exercise has, if nothing else, served that purpose.
The following reflections were prompted and inspired by the reading of four famous essays in legal theory: “The Path of the Law”, by Oliver Wendell Holmes, “Positivism and the Separation of Law and Morals” by H.L.A. Hart, “Positivism and Fidelity to Law” by Lon L. Fuller, and “Hard Cases” by Ronald Dworkin. Holmes and Hart are both well-known champions of legal positivism, while Fuller and Dworkin are equally well-known as amongst its most powerful critics. Indeed, Hart’s essay, which appeared in the Harvard Law Review, is what prompted Fuller’s “Fidelity to Law”, which was published in the HLR as a response to Hart, and their debate is now, if one can put it so grandiosely, legendary. In crafting this essay, the author has attempted to make it accessible to readers not intimately familiar with these particular works. Evidently, such familiarity would improve the reader’s enjoyment.
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The existence of law is one thing; its merit or demerit is another. Whether it be or be not is one enquiry; whether it be or be not conformable to an assumed standard, is a different enquiry – John Austin
Mise en scène, or “Sketch”
Imagine the following scenario: a courtroom, to which a man, having been convicted of a crime some weeks previously, has come to receive his sentence. The crime was not particularly heinous, but rather an obscure sort of securities fraud. The jury heard competing expert evidence from both sides and ultimately pronounced his conduct to be criminal. The man’s counsel tried to reach a settlement with the prosecution on the sentence but to no avail. Consequently, that decision has been left up to the judge.
The judge then emerges from her chambers, takes her place upon the bench, and announces that she is sentencing the man to five years’ imprisonment, to begin immediately. Armed agents of the court come forward to take custody of the man and usher him out of the courtroom towards his ultimate place of confinement.
This is the sort of scene commonly associated with the law. But where precisely in all of this is ‘the law’?
Some might think it trite to point out that ‘law’, like ‘justice’ or ‘fairness’, is not something to which one can point. However, legal positivism presumes that law is a knowable datum, whose boundaries can be circumscribed and whose content can be precisely described. Whenever one insists that there is a difference between law and ‘morals’, or law as it ‘is’ and law as it ‘ought to be’, one is asserting that fact. For what is the use in insisting on such a difference unless one believes that the present state of being of the law can be known and used as a basis for human action? And if this view is correct, then there ought to be something in the above scenario that one can point to and say: “this is law”.
Unfortunately, the above scenario presents a number of problems for this view. For instance, some things in the above scene are knowable, while others are not. The state of mind of the jurors, for example, is not knowable, at least not in a definite way. A state of mind is too ephemeral by nature to be accurately described, and in any case there is no residue, save memory which is itself ephemeral, to which one can look to confirm the accuracy of one’s description.
Granted, some might be inclined to argue that the content of the criminal statute on the basis of which the man, let us call him Mr. Humpledink, was convicted is knowable to a very precise degree. This proposition presents a further set of problems relating to linguistics, but let us assume for the moment that it is true. Even so, can one really say that the statute is the law? This cannot be a complete answer, because the statute did not say “Mr. Humpledink must go to prison after having told Mrs. Wembley that the value of shares in Cryonics Inc. was about to increase, thus prompting her to purchase a large quantity of shares, thus artificially and temporarily driving up the price, at which point Mr. Humpledink sold his own shares, leaving Mrs. Wembley with many shares that ultimately were worth far less than what she paid for them.” The statute contained very general statements about a type of conduct that constitutes ‘securities fraud’, and the jury, using their personal experience, knowledge gained at trial, and judgment declared that the acts of Mr. Humpledink corresponded to those outlined in the criminal statute. We have a phenomenon, the decision of the jury, which can itself be described to a certain extent. But the precise nature of the link between that phenomenon and the criminal statute is inherently unclear.
A further problem lies in the conduct of the armed agents of the court. These men acted upon the judge’s orders without hesitation to take Mr. Humpledink into custody and convey him to his place of confinement. But imagine for a moment that the judge was in fact mistaken in the instructions she gave the jury, that the verdict is incorrect at law and will very shortly be overturned by an appellate court. On what basis then are these armed agents coercing Mr. Humpledink to follow them to prison? It cannot be ‘the law’, for the law as it ‘is’ does not allow the jury to declare Mr. Humpledink guilty. Perhaps, one might argue, there is another statute that says that armed agents of the court must always obey the judge when, on the basis of a guilty verdict or plea, he orders to them to confine a particular person, irrespective of the merits of the verdict at law. But the guards were not referred to this other statute, indeed they may not even know of its existence. Perhaps they assumed, on being hired, that they must simply obey the judge in all things and left it at that. Either way, their actions were not directed by a ‘knowable’ text of law, at least not directly, but rather by a belief that the law demanded such action.
The purpose of the foregoing was not to analyse exhaustively the phenomenology of the scene in the courtroom, which was not itself depicted in great detail and with great fidelity to events as they usually unfold in a criminal trial, but merely to highlight in a preliminary way some of the problems inherent to treating ‘law’ as something knowable. Many words derive their meaning from the object which they signify, such as ‘book’ or ‘chair’, and one can argue that such things are knowable, but law does not signify a discrete object, although certain objects, such as statutes, counsel’s robes, judges, and prison bars, may be associated with it.
In many ways, the scene in the courtroom resembles a scene in a play, and the resemblance will be developed throughout this essay. In a play, all of the actors agree to coordinate their actions for a two-hour period on the basis of a particular text. Each is given responsibility for enacting one part of that text, and has considerable discretion over how that will be done. Each may in fact have been selected for their particular strengths at enacting some specific part. Ultimately, their interpretation will rest on their personality, their personal experiences, their knowledge and abilities. The action as a whole will be supervised by a director, who ensures some uniformity in the way in which the actors interpret the text through their actions, and is vested with final decision-making power over which interpretations will be used in the actual performance of the play. This power is compounded by the fact that the director will most likely have chosen the actors personally, such that their strengths and interpretive inclinations correspond with his own views on how the play should be enacted.
The ultimate impact that the play will have on individual members of the audience will depend to a certain extent on their own idiosyncrasies. However, notwithstanding differences of temperament, experience or knowledge, the play will probably be intelligible to an overwhelming majority of the audience. Perhaps a visitor from a foreign land who barely speaks the language, has only been in the country for a few days, and is not familiar with the concept of a play will not understand anything of this peculiar procession of events taking place on the stage. But for most members of the audience, there will be a shared pool of knowledge and, more importantly, shared expectations, that will provide some context and structure to the phenomenon of the play and contribute to its meaning as they understand it. Indeed, the influence of this semiotic consensus may be so strong that many lay observers—i.e. those not predisposed by education or temperament to inquire too deeply into the inner workings of the dramatic arts—will fall into the trap of believing that the director’s choices represent the ‘correct’ interpretation. His many years’ experience and great erudition in all things literary and dramatic lend his opinions great weight, and the combined effect of such authority and so evident and essential a social consensus provide strong inducements, whether consciously or unconsciously, to believe that the play is univocal.
Of course, in the process such observers will overlook the fact that the play is not merely a text by Shakespeare but a whole series of enactments on stage, a series of decisions by actors and the director, and an intricate web of shared meaning (in terms of language, artistic forms, and cultural norms) amongst the audience, the actors and the director. Such a thing is intrinsically polycentric and to call it univocal would be nonsensical. But, in a great collective act of metonymy the audience conflates its experience of semantic consensus with an object forming a part of it, the text of the play. This act is likely instinctive, most certainly intuitive, and its purpose is to make the incredibly complex more intelligible and the inherently ephemeral more tangible. Moreover, it grows ever more likely the less expertise one has in the dramatic arts. It may be that something important is lost in the process, or it may be that such a conceptual leap is in fact necessary in order for plays to successfully exist as plays. Although the author cannot answer that particular question, it will be returned to later on.
The purpose of the foregoing analogy was to lay in a concrete way some of the conceptual framework which the author intends to develop as this essay progresses. The relevance of an artistic endeavour to the nature of law will be made clear forthwith.
Act I: Proceeding backwards - law and the bad man
Far be it for this author to presume to dictate in the abstract how one should best go about understanding the law. It is in all likelihood far more useful first to consider the approach suggested by more learned minds than his. Holmes, whose qualifications in this regard hardly need restating here, suggested the following:
The first thing for a business-like understanding of the matter is to understand its limits, and therefore I think it desirable at once to point out and dispel a confusion between morality and law…. You can see very plainly that a bad man has as much reason as a good one for wishing to avoid an encounter with the public force, and therefore you can see the practical importance of the distinction between morality and law. A man who cares nothing for an ethical rule which is believed and practised by his neighbours is likely nevertheless to care a good deal to avoid being made to pay money, and will want to keep out of jail if he can.
Holmes builds on this notion to argue that law is the business of predicting the behaviour of courts; that is, of predicting in which ways the bad man can expect the coercive power of the state to fall upon him: “the prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law.”
Holmes’ view poses three problems which immediately come to mind. The first is that he does not supply any definition of morality, neither here nor elsewhere in his essay. As Fuller noted of Hart, and the comment is equally apt here, Holmes’ primary concern seems to be to “preserve the integrity of the concept of law.” Those sharing this point of view
Are like men building a wall for the defence of a village, who must know what it is they wish to protect, but who need not, and indeed cannot, know what invading forces those walls may have to turn back.
Such an approach is sloppy from a conceptual standpoint. One cannot possibly declare that law and morals are separate without first defining what is meant by each term and them comparing them. In the case of positivists like Holmes and Hart, morality seems merely to be defined as non-legal standards of human conduct, which of course is circular.
The second problem with Holmes’ view is that it overlooks an important aspect of legal practice. Without a doubt, much of what lawyers do, especially solicitors, is predict what courts will do, advising clients on the likely repercussions of acts they are considering doing or have already done. However, this overlooks the persuasive function of the barrister, whose job it is to convince the court that it ought to do one thing and not another. This is distinct from the lawyer’s role as ‘prophet’ of the law, and much more creative in nature. Moreover, these dual roles are related and not easily separated. While part of a lawyer’s ability to predict the court’s behaviour will undoubtedly be based on knowledge of the applicable case-law and statutes, or so-called ‘positive’ law, part will also certainly be based on his personal experience in attempting to persuade the court and negotiating with opposing counsel. This will reflect not only the knowledge he has gained of the courtroom, but also of his own abilities and what outcomes he is capable of securing and at what cost. Thus, the ‘law’, as a prophecy, varies from one lawyer to the next.
Finally, Holmes presents a peculiarly lawyerly way to view the law, which is evidenced by his reliance on the notion of a ‘bad man’ to define what is law and what isn’t. Without wanting deliberately to be uncharitable to Holmes, the author thinks it fair to say that this notion is ill-conceived and in fact rather silly.
As Holmes himself says later on, “I hardly think it advisable to shape general theory from the exception.” In terms of the law, the bad man is rather the exception than the rule. The overwhelming majority of individuals in a society which respects the rule of law will obey the law without needing to be constrained to it. While it is certainly useful and necessary for a legal system to possess the wherewithal to forcibly exact obedience from those who will not obey it willingly, it would be absurd to suggest that the entire system could possibly be based on the assumption that all rules will only be obeyed because disobedience can and will be punished.
The reason for this is very simple: if anything more than a very small minority of individuals ceased obeying the law, no legal system would possess the means to employ naked coercion against all of them. Even police states, where a much larger proportion of public expenditures is devoted to maintaining ‘law and order’ and ensuring that the people are obedient, rely on a substantial consensus in society in order to operate. No police state has ever existed that did not correspond in a substantial measure to the expectations and desires of the people. However odious Hitler may ultimately have shown himself to be, he was democratically elected before he was a dictator, and the German judiciary enforced, and the people obeyed, his tyrannical statutes to the very end. One has only to note the very prominent role of propaganda in such societies to see that this is true. Totalitarian states expend enormous effort convincing their subjects that the state is acting in the interests of society, and we should not let our personal opinions as members of a democratic society about the legitimacy of such measures blind us to the central dynamic at play. It may very well be that one of the primary reasons why the acts of police states correspond to the expectations and desires of the people is that these have been planted or manipulated through propaganda, but that is neither here nor there. Viewed from our paradigm, such propaganda might easily be construed as a form of coercion, but if so surely it is very different in nature than that referred to by Holmes. What cannot be doubted is that propaganda helps generate the social consensus needed for individuals to voluntarily choose to obey the laws and other edicts of such states.
A further, and perhaps more palatable example, can be found in our own use of propaganda during the two world wars. The Allied governments of the day understood that they could not possibly enforce conscription on every single conscript. In order to work, conscription relied on voluntary obedience; otherwise, more men would be needed to enforce conscription than were being sent to the front. Thus, governments mounted massive propaganda campaigns to legitimize the war effort and persuade, using the moral language of ‘duty’, ‘patriotism’, ‘honour’ and ‘freedom’, conscripts to believe that they had a moral obligation to report for duty.
If a particular law is not obeyed by a large proportion of the population, it becomes to all intents and purposes unenforceable. This may remain an isolated incident, as in the case of the prohibition on alcohol in the 1920’s in the United States, or the prohibition on marijuana use in Canada today. However, if an entire legal system is systematically ignored by a large proportion of the population, this can lead either to a general breakdown in order without any particular centre of gravity, or a full-scale civil war, depending on the nature of the group disobeying the law. However, in either case the claim of those rules to being ‘law’ becomes extremely tenuous, at least from a practical standpoint.
Act II: Legal systems vs. individual laws
It seems opportune at this moment to consider a distinction made by Hart, and with which it would be difficult to reconcile the position of Holmes, at least in its general formulation provided in the statement quoted above:
It may well be said that, though [the distinction between law and morals] is valid and important if applied to any particular law of a system, it is at least misleading if we attempt to apply it to “law,” that is, to the notion of a legal system, and that if we insist, as I have, on the narrower truth (or truism), we obscure a wider (or deeper) truth…. We must avoid if we can the arid wastes of inappropriate definition, for, in relation to a concept as many-sided and vague as that of a legal system, disputes about the “essential” character, or necessity to the whole, of any single element soon begin to look like disputes about whether chess could be “chess” if played without the pawns.
This qualification is seductive, and appears instinctively correct to one with the pragmatic instincts of a jurist. To those whose every habit of thought presumes the existence of laws and assumes that they are for the most part easily identifiable, it may seem trivial to insist on the process by which one identifies a law as a law. Surely it is true that within any society possessing what is recognizably a legal system the standards by which one distinguishes law from ‘not-law’ must be beyond all debate. The question, in Hart’s view, is not “must one distinguish between morals and the legal system as a whole”, but rather “must one distinguish between morals and a properly adopted and enforceable law.” The debate centres on the proposition, put forward by advocates of theories of ‘natural law’, that such a properly constituted law simply cannot be law if it violates essential morality.
Put in such stark terms to a reader in the present day that proposition may seem absurd, so it is necessary to provide some context in order for the question even to make sense. When Austin advanced his theory of legal positivism, it was in response to writers such as Blackstone, who argued that the “laws of God are superior in obligation to all other laws; that no human laws should be suffered to contradict them.” Austin’s argument was that an act of Parliament or a judicial holding was law and must be obeyed even if it contradicted Scripture. Although not entirely unthinkable, such arguments would today rarely see the light of day (indeed, that fact is instructive, and will be returned to later). However, Hart raised the question in a different and still topical context, i.e. that of how German courts in the post-war period should treat the laws passed by the Third Reich. He criticized one judgment in particular, which set aside what had been law under the Nazis for the reason that it “was contrary to the sound conscience and sense of justice of all decent human beings.” This decision, by a court of appeal, was “followed in many cases which have been hailed as a triumph of the doctrines of natural law and as signalling the overthrow of positivism.” In Hart’s view, if this law was to be set aside (which he considered just and right), it should be done by a frankly retroactive statute and not by a court. He could not countenance the notion that a court might recognize something as law and then refuse to apply it by citing moral reasons.
Hart’s position was that in those cases where the content of the law is easily ascertainable—a large majority of cases, in his view—the court’s application of that law should not be tainted, altered or prevented on the basis of ethical beliefs. This proposition presents two problems, the first having to do with the nature of legal interpretation, the second being more fundamental and theoretical in nature. We shall deal with the second of these first as it is directly relates to Hart’s distinction between laws and ‘legal systems’.
As noted earlier, Hart’s distinction is seductive for the trained mind of a professional jurist. However, not only is it inaccurate, but it conceals an important truth of great practical significance. The author will grant that it is possible to become a reasonably adept technician of the law without ever having contemplated the architecture of the system as a whole, much as one can use a building without having designed it or studied its blueprints. However, it cannot be said that such a technician truly understands the law. To the practical mind, it may be tempting to say that all one really needs is to be able to recognize a door when one sees it and to distinguish between corridors and air-ducts, or to be able to distinguish between law and not-law. However, if one’s purpose is to inquire into the very nature of law so as to understand its limits and its inner workings more fully, such a superficial knowledge cannot be satisfactory. Moreover, quite aside from satisfying one’s curiosity, there are a variety of problems faced on a fairly regular basis by a legal technician that cannot be solved unless he comprehends the full architecture of the legal system in which he is operating.
Situations are regularly encountered by courts and legal counsel in which there is no ‘clear’ answer. Hart would willingly concede that in such ‘hard cases’ a judge may legitimately ‘legislate’ to fill in gaps in the existing law. But how should he go about designing this new outgrowth of the law? If one were to suggest that a contractor build a passageway between two skyscrapers at the 40th storey without first examining the blueprints of each building, the health of one’s wits would surely be called into question. Likewise, in order to legislate in the ‘penumbra’ of the law without undermining the soundness of the entire edifice, one must properly understand the workings of the legal system as a whole. That is, one has to grasp how it is that law comes to be recognized as law.
This statement is robbed of all controversy if we consider a topic such as that of same-sex marriage in Canada. Imagine if the Ontario Court of Appeal had simply declared that the old definition of marriage violated section 15 of the Charter of Rights and Freedoms citing only non-legal ethical authority. Public outrage would have been extreme and political reactions quite different from what they ultimately were. However, the court in fact engaged in a long process of legal rationalization, using a variety of accepted legal principles to interpret an ‘unclear’ provision of the Constitution and create a new rule of law. While some were still uncomfortable with the outcome from a moral standpoint, none but the most extreme reactionaries would deny that the judgment of the court was recognizably ‘law’. An obstinate legal pragmatist might argue that public opinion is irrelevant, that the fact that a court pronounced a rule to be law made it so. This of course begs the question of why we accept that judges can ‘make’ law, but a more practical concern is that of how this decision will be treated by other courts. For if that decision in fact violated the inner morality or standards of the legal system whereby rules come to be recognized as law, then other courts might find excuses not to apply it, or a higher court might simply invalidate it. This undoubtedly is part of what Dworkin aimed at with his notion of a legal Hercules, a lawyer of “superhuman skill, learning, patience and acumen … who accepts the main uncontroversial constitutive and regulative rules of the law in his jurisdiction,” and who might develop “theories of what legislative purpose and legal principles require” in a ‘hard case’ where no clear rule exists. Such a legal Hercules will employ his understanding of the architecture of the law to create a new outgrowth consistent with the whole.
Regardless of how perfectly any single ‘human’ jurist approximates this particular ideal, clearly the distinction between a law and a legal system is specious. One can only recognize something as law if one accepts the standards of a given legal system. A legal system is therefore a self-contained epistemology, which determines how one ‘knows’ what is law and what isn’t. Having framed the question in this way, it is possible to answer one of Hart’s assertions that seems intuitively so unassailable, and which presents a grave problem for our earlier argument, i.e. that “a rule of law may be said to exist though enforced or obeyed in only a minority of cases, but this could not be said of a legal system as a whole.” True, in a given legal framework with a clear epistemology, something may validly be considered a law though it be unenforceable or widely disobeyed. But such events must remain a rarity. Any legal system that habitually adopted unenforceable rules would inevitably disintegrate because the very meaning of ‘law’ would become corrupted. Consequently, any workable legal epistemology must have as a basic, if perhaps un-stated, premise the notion that laws must correspond to a social consensus in order to be laws.
Act III : Legal interpretation - the core and the penumbra
Such an approach is hinted at by Fuller. Let us consider the following statements:
[Hart] insisted throughout on the importance of keeping sharp the distinction between law and morality. The question may now be raised, therefore, as to the nature of these fundamental rules that furnish the framework within which the making of law takes place. On the one hand, they seem to be rules, not of law, but of morality. They derive their efficacy from a general acceptance, which in turn rests on a perception that they are right and necessary.
(…)
No written constitution can be self-executing. To be effective it requires not merely the respectful deference we show for ordinary legal enactments, but that willing convergence of effort we give to moral principles in which we have an active belief.
What Fuller is saying, if only obliquely, is that law, far from being a discernable object, is in fact comprised of a nexus between action and communication. Nowhere is this more true than in the process of legal interpretation, although this truth is easily overlooked.
Hart famously classified all cases into two groups: those falling within the ‘core’ meaning of a legal rule, and those falling in its ‘penumbra’. According to Hart, all words, and thus all rules, which are made of words, must have a “standard instance”, a core of “settled meaning” wherein there are no doubts about its application. Certain cases will fall within the penumbra of meaning, in which the rule is “neither obviously applicable nor obviously ruled out.” For Hart, this seemed to settle the question of the existence of law. Fuller dealt with this analytical construct at great length in his essay, and this author will defer to his criticisms, which surely are more insightful and pithy than any he could offer. It will suffice for our present purposes to point out the following: that interpretation is the act by a conscious mind of apposing meaning on a particular phenomenon. We use ‘phenomenon’ as opposed to ‘object’ or ‘thing’ in order to include all of those more ephemeral things, such as actions, concepts, emotions and impulses, which enter human consciousness and receive from it some meaning. Whether the meaning of a symbol or event be ‘clear’ or ‘unclear’ does not alter the essential nature of the action being posed. The act of giving meaning can be unconscious, as when one hears words or sees an object with which one is intimately familiar. It can also be conscious, when no meaning presents itself instinctively to one’s mind, and one must consciously choose to provide a particular phenomenon with meaning. But in either case the action is the same. Thus, all law, whether it be laid out ‘unambiguously’ in a statute, created by judicial holding, or imagined by a businessman deciding whether or not the act he is contemplating constitutes a breach of contract, is a human action.
Act IV: Law - an ongoing effort to create that which ought to be
This latter point raises the issue this essay ultimately aims to deal with, namely the origins of legal meaning. Hart inadvertently and quite despite himself glanced upon the essential conclusion being pursued by this author when he said the following:
Undoubtedly, when Bentham and Austin insisted on the distinction between law as it is and as it ought to be, they had in mind particular laws the meanings of which were clear and so not in dispute, and they were concerned to argue that such laws, even if morally outrageous, were still laws.
Here, legal clarity is being conflated with a lack of dispute over meaning. Now, a lack of dispute over meaning can result from two situations. Either the parties involved are not aware that their interpretations differ, or there is a consensus amongst them as to the meaning of the statute. Given that the legal profession is one that can fairly be said to be quite obsessed with clarity, and one certainly not shy of confrontation, it is unlikely that the former scenario might explain any lack of dispute over the meaning of certain rules of law. It follows then that there must be a consensus amongst all those involved as to the meaning of those rules. That realisation is pregnant with implications. It implies, first and foremost, that clarity results from a common understanding of what the law is and what its purposes are. That common understanding is a state of mind shared by human beings, not some immutable thing to be signified by the word ‘law’.
The full import of this notion can be seen if we examine more closely the origins of legal positivism. Austin had been reacting to the view of Blackstone, which although it had been put forward a hundred years earlier was still widespread in Austin’s day, that the laws of God could vitiate the laws of man. Both Blackstone and Austin lived in a time and place where the vast majority of the population accepted the authority of holy scripture, but in Austin’s day the English state and society were undergoing massive and unprecedented change. In the many centuries during which English society had been primarily pastoral, the need for state regulation was rather small except in limited areas, such as commercial law or maritime law, centred mostly on London and a few other major ports, which affected the general population very little. By the time Austin was delivering his famous lectures, the political economy of English society had been, to put it crudely, turned upside down. Commercial and industrial activity now employed a large proportion, if not an outright majority of the population, and the state was much larger and wealthier as a result of the productive forces unleashed by the Industrial Revolution. Holy scripture simply was not equipped to regulate the increasingly complex economic and social institutions being created by the new England; only new, ‘human’ laws specially adapted to such circumstances could do so. Austin was fighting the tendency of some, which he found retrograde, to want to regulate the new industrial society with moral codes from another time. The best and most effective way to fight this tendency was to affirm the supremacy of human law over ethical or scriptural norms. Austin’s labour was a battle for the ‘hearts and minds’ of Englishmen, to create a new consensus around the principle that only human laws must imperiously govern human affairs.
This brings us to the fundamental nature of law. Nothing is more natural for human beings than to imagine a state of affairs that is preferable to the one in which they find themselves, and to act in order to bring that about. Inevitably, man being a social and political animal, such ideals of the way things “ought to be” are formed in dialogue with family and fellow members of society. Sometimes that which is sought is a mode of social organization which is thought to be able to bring about maximum prosperity and happiness. Sometimes it is merely the resolution of conflicts between competing interests. Other times it may be to bring human action in line with what society imagines to be divine will.
In all cases, such imaginings set in motion a process of dialogue followed by action, and then evaluation of the outcome in relation to the posited ideal. In smaller social groups, this process can be conducted on an ad hoc basis. Small groups are easily managed, communication is not complicated and consensus fairly easily reached. However, conducting that process on the basis of very large social groups is vastly more complicated. Complete and inclusive dialogue is difficult and even in some cases impossible. Coordinated action is only possible with the centralization of decision-making powers, which in turn requires that all members of the group accept as a most basic rule that they are required to recognize the authority of that centralized agency irrespective of their personal views on a given matter. The centralized authority, incapable of considering each and every problem or issue casuistically, will be forced to posit general rules which it believes make good outcomes more likely. Evaluation of outcomes becomes overwhelmingly complex and tends to fall in the hands of trained specialists, most people having neither the time nor the abilities to conduct detailed evaluations themselves.
Our conclusion should by now be obvious. ‘Justice’ represents a society’s ideal, its notion of the way things ought to be. Societies engage in a process of action and communication to bring about that ideal or change it. The larger and more complex a society is, the more formalized such a process will become. This process is in our society referred to as law. Law is a collective endeavour, a process of shared meaning, coordinated action, and voluntary submission to authority. Most people respect the law not because of its moral content, nor out of fear of punishment, but because it represents a process they have set in motion, and in which they participate, to bring about that which ought to be, a ‘just’ state of affairs in all things, be it discrete conflicts or social organization. As de Tocqueville noted so long ago, nowhere are laws more fervently respected than in democratic countries, where the people have a sense of ownership over them. Judicial interpretation is founded on this social consensus, which is so fundamental and so taken for granted that it becomes almost invisible. But an effort to understand that this consensus lies at the root of law is necessary in order that judicial actors might properly fulfil their function in advancing the content of justice in those areas where it is not yet established and the meaning of law not clear.
Act V: A need for the positivist faith?
The preceding paragraphs contain some sweeping generalizations, as is unfortunately necessary in so short a piece of writing. Nevertheless it is clear that the position set out in them seems squarely at odds with the very notion of legal positivism. The author would like to suggest some thoughts which may redeem the positivist faith.
There is often a very great difference between the subjective experience of a phenomenon and its description by an outside observer. Nowhere is this more evident than in the case of pain. Pain can be described as a set of electro-chemical impulses that travel from nervous endings near a point in the body being damaged in some way to the brain, setting off a further chain of electro-chemical impulses that can be described according to their distribution pattern and molecular structure. However, such a clinical, ‘scientific’ description would completely fail to describe the experience of pain felt by the conscious mind. So too may it be with the difference between legal positivism and the more macroscopic view of the law taken by thinkers such as Fuller and Dworkin.
There is no question that for the thinking legal mind, the law ‘exists’. The meaning ascribed to statutes and case-law by such a mind is so visceral that its truth can scarcely be doubted. Indeed, this author would venture to say that a large part of legal training consists in reconstructing the minds of students such that they are forever searching for the law, never doubting that it exists though it be hard to find. The ‘correct’ sources of law are drummed into them over and over again for many years, and this process persists during the early phases of professional training under their more experienced peers. It is a process whereby faith in the existence of law is manufactured, if it did not already exist, and deepened if it did. This faith consists primarily in, firstly, believing that a legal rule exists which can solve the issue, and secondly, believing that this rule will satisfy those to whom we present our legal arguments.
It is perhaps unlikely that most jurists would be able to perform the functions of a legal technician efficiently and effectively if they were trained to view the law as a compendium of fluctuating moral beliefs aimed at producing some consensus-based view of the social good. Here the author would like to return the reader to the play analogy drawn in the opening part of this essay. A play can scarcely be understood if the audience persistently keeps in the forefront of its mind the notion that it is collectively, with the actors, engaging in an elaborate inter-subjective exercise in the fabrication of meaning. A certain ‘suspension of disbelief’ is required in order for the play to be intelligible as a phenomenon in its own right.
Similarly, in order to function as law, legal rules must have some regularity. Or rather, they must be believed to have some regularity, such a thing being largely subjective. This observation becomes more pointed if we substitute ‘regularity’ for ‘predictability’. As noted earlier in our comment on Holmes, the predicted outcome of a legal action can depend greatly on who is doing the predicting. But irrespective of that, predictions cannot be made unless one truly believes that they are possible. And believing that requires making certain assumptions about the nature of law. When predicting natural phenomena, we rely on deductive and inductive reason to make statements about an expected future occurrence. So it is with legal prediction. But of course, that assumes that law exists and that it is subject to reason. However, given that one of the purposes of law is to make human affairs more predictable, believing in one sense does make it so. Society, in its ‘legal activities’, will behave in a way that is predictable, thus compounding (or perhaps giving rise to) the illusion that law is a knowable thing whose behaviour is predictable according to the laws of reason.
posted by Érik le Rouge at 1:01 PM
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