Jurisprudence: Austin, Kelson, and Hart; they all say the same thing

Jurisprudence, to me, seems to be the never ending trial of the philosophers to justify and reconcile laws to the practical, and, in this quest, different schools have defined law in different manner. The most interesting amongst them are the analytical school philosophers. Instead of worrying about WHAT LAW OUGHT TO BE, they have concentrated on WHAT LAW IS. When one does that, one has to identify an evident source of law, and, once so done, the other issues, like the validity of law, become easy.

Austin’s method is the simplest and the most frank. He says the law is the command of the SOVEREIGN. The SOVEREIGN is a political superior. If, instead of saying political superior, he had just said superior, his theory would have confirmed to even the present times because today the command of the BOSS has almost become law (or very soon it will). Of course, the BOSS is not a political superior, but he is indeed a superior. However, as many others also do, I even hate to think of any command of a BOSS to be any law. Rather, I even hate to have a BOSS. Then, why shouldn’t I, and many like me, hate the presence of SOVEREIGN even because after all the idea is same! So, Austin and his theory is rejected outright.

Kelson is more ingenious. He has, instead of attributing the origin of law to a determinate body, identified the source of law in an abstract concept called the BASIC NORM. Acoording to him, the BASIC NORM is that “one ought to behave as the individual, or the individuals, who laid the FIRST CONSTITUTION have ordained”. Without worrying about what is the FIRST CONSTITUTION, and who laid it, the only relevant thing to understand is that any law made in accordance with the constitution is valid law. Or, in other words, the origin of law can be identified with the constitution. One will have to just accept the validity of the constitution. For example, In India, the constitution laid down by a minority, who were not even representatives of the people, is a valid constitution. Not only this, our constitution, to a large extent, is inspired from the GOI Act, 1935; in the same manner as the stories of the Bollywood films are inspired from the hit Hollywood films. I, and I hope many like me, wouldn’t be willing to accept the validity of the Indian Constitution.

Hart tries providing some solution to the problems by introducing the concept of INTERNAL POINT OF VIEW/INTERNAL STATEMENT. Well, his theory is the most complicated and, by far, the most ingenious too. He says that any INTERNAL STATEMENT about the validity of the primary rule is per se relevant to identify it as a valid law, and such statement having been made doesn’t require any more justification for the validity of law. Now, the moot question is what is so special about this INTERNAL STATEMENT that we need not ask any further? And, btw, what is the source of law? It’s difficult to do justice to his ingenuity over here, so I won’t attempt it. Anybody interested in his theory in detail can read it from any standard book on Jurisprudence. However, I should surely state over here that he has identified the source of LAW in the people themselves. In a complicated legal system, he has introduced the concept of secondary rules, which are presupposed while making INTERNAL STATEMENTS of validity, and, for these secondary rules, he has introduced the concept of effective acceptance of secondary rules as the common public standards of official behavior by officials — simply speaking, the government officials shouldn’t revolt — and once this condition is satisfied, and the officials are able to ensure that the people at large obey the rules which are law, out of fear or for any other reason, the system can be termed as a LEGAL SYSTEM, irrespective of whether the people at large feel obligation towards the rules; this is something which should exist in the communist (in the practical sense of the term) legal systems, and does actually exists in the so-called democratic systems, like India, the USA, the Europe, etc. Very simply speaking, it means that a small coterie of people have laid down some rules for themselves by custom, implied mutual consent, etc., and, on the basis of these rules, they lay down/identify other rules as the law for the people at large, which rules are ensured to be followed. I, as a free individual, fail to accept this too.

Then also comes the moot question: if law is what this small coterie of people lay down for me, do I need to follow it? And, the answer is yes, and this is not out of any moral obligation or fear but because of a practical necessity. Let me elaborate this point. This small coterie of people (in the present day context) are the power houses of the system and are represented by the politicians. They maintain their power by creating occasions for law violation by the powerless individuals, each in their individual contexts. For example, a small powerless businessman will be but forced to bribe a policeman if he wants to do business, for if he doesn’t, he will die of hunger, but if he does, he can aspire to join the power houses some day; this is what the AMERICAN DREAM is all about. This is a very simplistic situation. There could be more complicated situations; for example, a young unmarried girl desiring to have outside marriage sex (which is perfectly legal) will not be allowed to do so till she decides to enter the prostitution industry (which is illegal and should remain illegal; solution doesn’t lie in making the immoral traficking legal, as it doesn’t lie in making bribery legal). In this situation, the girl has a capability to fight because the need for sex is not so prominent as is the need for food. If she, and others like her in their own particular situations, are able to fight it out, she and the whole system would certainly be better off, and, then, probably a Hart will not have a need to end his note like this:

In this more complex system, only officials might accept and use the system’s criteria of legal validity. The society in which this was so might be deplorably sheeplike; the sheep might end in the slaughter-house. But there is little reason for thinking that it could not exist or for denying it the title of a legal system.

©2008 Ankur Mutreja

About the Author

Ankur Mutreja
Ankur Mutreja is an advocate-cum-writer, and his blogs are amongst his modes of expression. He has also authored six books: "Kerala Hugged"; "Light: Philosophy"; "Flare: Opinions"; "Sparks: Satire and Reviews"; "Writings @ Ankur Mutreja"; and "Nine Poems"; which can be downloaded free from the links on the top menu.

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