AC Grayling surveys the essential literature from Aquinas to HLA Hartby AC Grayling / October 20, 1996 / Leave a comment
A law of nature is not a law in the normal sense of the word, but a generalisation about observed regularities. The laws governing the activities of people in societies, and attributed to the authorship of gods, kings or parliaments, are in some way stipulative or imperative. But in what way? What is law, and what justifies it?
Philosophical debate about the nature of law is called “jurisprudence,” and most discussions of it begin with John Austin and his The Province of Jurisprudence Determined (1832). He defined law as a command given by a sovereign and enforced by a sanction, where a “sovereign” is an identified common superior which the majority of a given society’s members habitually obey, and which is itself supreme. This “command” theory of law seems obvious, and Austin was not its first exponent; Jean Bodin in Six Books of the Republic (1576), Thomas Hobbes in Leviathan (1651) and Jeremy Bentham in A Fragment on Government (composed 1776) took similar views. Austin is however its first systematic proponent.
A crucial feature of Austin’s view is its rejection of the concept of “natural law” (not the same thing, note, as “laws of nature” in the physicist’s sense). It had long been argued that man-made laws are valid only if they do not conflict with a higher law, such as the law of God; the validity of law, in other words, is related to its moral content. Austin rejected this, saying that if a law is commanded by a sovereign, it is ipso facto valid, irrespective of its morality. This is called “positivism”: it holds that the question whether a law is a law differs from the question whether it is a morally acceptable.
It was over a century before Austin’s theory was challenged. But it was challenged brilliantly, by HLA Hart in The Concept of Law (1961). Hart showed that actual real-life laws are not like orders backed by threats, as the command theory states. Nor is Austin’s theory of unlimited sovereignty satisfactory, because legislative bodies or individuals are typically constrained in their powers-say, by a constitution; and can in certain circumstances be checked by external agencies-say, a court; and might ultimately owe their authority to something else-say, an electorate. Hart’s view of the nature of a legal system turns instead on the idea of “rules of recognition,” which enable us to know what laws are by…