The jurisprudential theories discussed in previous chapters, with the notable exception of the theory of Karl Marx, are cast within the intellectual tradition of political liberalism. There are significant differences among these theories, but they are ultimately grounded in liberal views of law and society. This chapter discusses the challenges to the fundamental assumptions of liberal legal theory that came to prominence during the later decades of the 20th century. It will focus in particular on the ideas of the critical legal studies (CLS) movement, postmodernist legal theory and feminist theory. It is not possible to understand criticism without knowing what is being criticised. Hence, I start with a brief discussion of liberalism and liberal legal theory.

Liberalism and liberal legal theory

Liberalism is a tradition in political and legal theory that gives primacy to individual liberty in the political and legal arrangements of a society. ‘Liberalism’ is a term of recent origin. Originators of the liberal philosophy such as Hobbes, Locke, Hume, Smith and Montesquieu did not use the word. In fact, ‘liberal’ in early English usage was a term of ridicule meaning a libertine. The term gained respect and influence during the 19th and 20th centuries and (in its various forms) has become the dominant political ideology of the Western world. There are many kinds of liberal theory, and important differences among them. The following questions draw different responses from liberal thinkers.

1. Why is individual liberty the pre-eminent political value?

2. What does individual liberty mean and what are its bounds and requirements?

3. […]

Legal positivism is the most influential school of thought in jurisprudence. This is hardly surprising, as the idea of law as the creation of a human law giver that lies at its heart is a common intuition. Ask the person on the street whence comes the law, and expect to hear that law is the work of parliaments, monarchs or other rulers. Ask a lawyer what the law is, and anticipate an answer drawn from legislation and judicial precedents. The ancients may have regarded the law as received from divine sources but in the modern world, where most laws have a known human author, people think of law as the product of designing human minds.

British legal positivists regard the law as ‘social fact’, by which they mean that law is found in the actual practices or the institutions of society. Legal positivists have their significant disagreements but they share the common aim of helping people understand the law as it actually is. A survey of positivist writings on the nature of law reveals the following main themes:

1. Law is the creation of human agents. Even custom is not law unless it is recognised and enforced by a human authority.

2. The law as it is can be distinguished from notions of what the law ought to be. Law is social fact. It is found as rules declared by authorities such as legislatures and courts, or in the actual practices of those who enforce the law.

3. […]

Justice is a universal aspiration, and the sense of injustice is a powerful human emotion. It is strongest when a person's own interests are harmed, but is also aroused in civilised people when they witness wrongs done to others. Widespread and unrequited injustice inevitably leads to conflict. A society that does not have justice as a governing principle is an unstable society that will be held together, if at all, by force. Justice is also a perennially controversial idea in human affairs. People are united in their belief in justice as an ideal, but are divided on what justice means or requires. Many conflicting claims for material goods are made in the name of justice because of its emotive power. Justice has no universally valid definition. It means different things to different people and its requirements may change over time. Different kinds of justice are not always in harmony. One person's claim for legal justice may conflict with another person's demand for distributive justice. The legal requirements of procedural justice may constrain the pursuit of substantive justice, as explained further below.

Justice is not exclusively a jurist's concern. It is at the centre of moral and social philosophy. I will not attempt the futile task of surveying, within a book chapter, the vast body of legal and philosophical literature on justice from the time of Plato to the present day. My aim is to explore the main connections between law and justice.

Previous chapters have focused on theories about definitions and descriptions of the law as it is or as it ought to be, and of how law is made or emerges in society. This chapter examines another vital aspect of law: namely, the internal structure of legal norms and the basic conceptions that are used in legal statements. In other words, we look for the building blocks of legal statements, the conceptions without which a law maker cannot make a law. This discussion is centred on the remarkable contribution on this subject made by Wesley Newcomb Hohfeld (1879–1918).

Not every kind of statement makes law. Assume that King Rex is the absolute ruler of a country. The rule of recognition accepted by the country's officials and citizens grants Rex the power to make law according to his will. He simply has to express it and his will becomes law. One morning on awaking, Rex says to no one in particular, ‘I hope the weather will be nice this morning so I can ride my horse’. This is obviously not a law but a hope. At breakfast he tells his Queen, ‘I wish my subjects will be well behaved and law abiding today’. This is also not a law but simply a wish. That afternoon he proclaims at the Royal Council: ‘It is henceforth the law that no trader shall sell a standard loaf of bread for more than one dollar’.

Jurisprudence was enlivened in the second half of the 20th century by new debates about law and morality. Two of these involved Herbert Hart, the major figure in British legal positivism. Hart argued that the connection between law and morality was not necessary but contingent. He acknowledged that law often gives effect to morality, as when it prohibits crimes and torts and demands the performance of contracts. However, he maintained that a law, however immoral, will be law if it is recognised as law according to the established rules of recognition. The sensible response to such acts, Hart argued, is not to deny that they are law but to correct their effects by other laws passed where necessary with retrospective effect. (See discussion of Hart's views in Chapter 2.)

Two American professors of law questioned this general theory, and argued that law cannot be separated from morality in the sense proposed by Hart and his positivist predecessors. The first was Lon Fuller, whose theory was inspired by the German legal philosopher Gustav Radbruch. The second was Ronald Dworkin, who was a student of Fuller at the Harvard Law School. Their arguments are related in some ways to the classical ideas of natural law discussed in the previous chapter, but they also introduced new dimensions to the debate about the relation of law and morality. Fuller and Dworkin approached the question from different directions, but I conclude that their theories are fundamentally similar.

The idea of a higher moral law that positive human law must not violate has a long and continuous history in both Western and Eastern thinking. It is found in Greek philosophy at least from the time of Heraclitus of Ephesus (c. 535–475 BC). It has a central place in Judeo-Christian doctrine as set out in the writings of Augustine, Thomas Aquinas and the Scholastics. It lived in the natural rights discourses of Grotius, Hobbes, Locke, Pufendorf and others. In Vedic (Hindu) philosophy the moral law of governance is revealed in the Dharmasastra. In traditional Sinic culture, Confucian philosophy subordinated law to ethics. The religious Sharia is a powerful influence on the law of Islamic nations. In our age, basic human rights are posited as universal higher norms binding on nation states. In Western philosophy such higher moral law is commonly known as natural law.

Natural law is so called because it is believed to exist independently of human will. It is ‘natural’ in the sense that it is not humanly created. Natural law theories are theories about the relation between the moral natural law and positive human law.

Introduction

The second half of the 20th century witnessed a resurgence of evolutionary theory in both the natural sciences and the social sciences. The most significant feature of this movement has been the extension of the Darwinian theory of evolution – or, more accurately, the neo-Darwinian synthesis – to human culture in order to explain such phenomena as scientific and technological development, the emergence of formal and informal social institutions, language acquisition, and even mind and consciousness. Evolutionary accounts of legal emergence have figured prominently throughout the 20th century in cultural anthropology and within branches of economics, most notably the Austrian and the institutional economics traditions. Although American jurisprudence was quick to embrace evolution after Darwin, legal scholars in the 20th century have only paid sporadic attention to evolutionary accounts of law (Ruhl 1996a, 1412–13). The situation has changed somewhat with the persistent efforts in law and biology by scholars associated with the Gruter Institute for Law and Behavioral Research (Elliot 1997, 596) and the nascent complexity and law movement (Ruhl 1996a, 1996b).

What has law got to do with economics? Most lawyers will probably say ‘nothing’ or ‘not much’. However, if the question posed is ‘What has law got to do with the economy?’, most lawyers are bound to answer, ‘quite a lot’. The laws of property and contract allow people to trade in goods and services. Consumer protection laws place restrictions on how traders may conduct trade. Labour laws regulate the labour market. Competition law aims to increase competition and prevent monopolies. Tort law gives protection to person and property from wilful or negligent harm, without which trade and commerce would be seriously restricted. How can farmers grow wheat and sell their crops if their land is not secure from trespass and their crops not protected from theft? How can General Motors or Ford make and sell cars if they have no ownership of the cars that they produce? International trade and investment law promotes trade and investment among nations. There will be little foreign trade or investment if states do not recognise the rights of citizens of other states. Even laws concerned with private morality have economic effects. Prohibition of alcohol consumption in the United States gave rise to a new industry known as bootlegging. Most lawyers accept that laws affect the economy, directly or indirectly.

Lawyers also have no difficulty in recognising that economic factors have quite a lot to do with legislation passed by parliaments. Governments, depending on their philosophies, react to economic forces in different ways.

This book is about the social phenomenon that is known as law and its relation to justice. This is not a treatise on some branch of law such as contract law, tort law or the law of crime. It is about past and present theories concerning the nature of law and justice in general. However, it is not possible to conduct an inquiry of this nature, let alone make sense of the more important questions, without reference to actual legal systems and actual laws. Hence, specific rules of law figure in discussions throughout this book.

Jurisprudence in the sense used in this book has been around since at least the time of the philosopher Socrates (470–399 BC). Great minds have sought answers to questions about the nature of law, right and justice, but questions persist. This says as much about the complexity of these ideas as it does about the limits of our language and reason. Theories that have proposed answers to questions have themselves become subjects of ongoing debate. This book does not pretend to have the last word on any of these questions, but neither does it seek to avoid controversy. Its primary object, though, is to state in comprehensible terms the major questions in jurisprudence, assess critically the contributions on these questions made by various schools of thought, introduce the reader to some new insights about legal systems and make its own contribution to this conversation about law and justice.

British legal positivism was founded on empiricism. Empiricist legal theorists reject metaphysical or mystical explanations of law and assert that law exists as social fact and nothing more. The main inspiration for Germanic legal positivism is not empiricism but the transcendental idealism of the German philosopher Immanuel Kant (1724–1804). Whereas British legal positivists regard law as fact distinct from morals, their Germanic counterparts seek to separate law from both fact and morals. This chapter discusses Germanic legal positivism principally through the work of its most famous proponent, Austrian legal philosopher Hans Kelsen.

Kelsen (1881–1973) was born in Prague but moved with his family to Vienna at the age of two. He taught at the universities in Vienna and Cologne and at the University of California at Berkeley. Kelsen was the author of the Austrian Constitution and the designer of the Austrian model of judicial review adopted by many countries.

The key elements of Kelsen's theory are these. Facts consist of things and events in the physical world. Facts are about what there is. When we wish to know what caused a fact we look for another fact. A stone thrown in the air comes down because of the force of Earth's gravity. There are seasons because the Earth's axis is tilted at 23.5 degrees. A norm, unlike a fact, is not about what there is but is about what ought to be done or not done. Whereas facts exist in the physical world, norms exist in the world of ideas.

In the previous two chapters I discussed the two most influential versions of legal positivism. In this chapter I explain and consider the theories of the jurisprudential school known as the legal realists, who challenge legal positivism in important ways. Realists are also positivists in the sense that they seek to explain the law as it is as opposed to what the law ought to be. Realists agree with the positivists that law's connections with morality are only contingent or coincidental. An immoral rule may still be law. Theirs is a very different complaint: namely, that positivists misrepresent the nature of law by their undue focus on its formal features.

Legal realism refers mainly to two schools of thought. One is known as American realism and the other as Scandinavian realism. Scholars of both traditions reject the more formal descriptions of the law given by legal positivists, but differ in what they see as the chief defects of positivist theory. The American realists claim that the law in real life is very different from the law stated in the law books. The real law, they say, depends on how appellate courts interpret written words and how trial courts determine the facts in particular cases. There is uncertainty at both ends.

Scandinavian realism is a movement that started with Axel Hägerström's attempt to find a scientific theory of law that did not involve metaphysical explanations.