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Austin, Hobbes, and Dicey
Published online by Cambridge University Press: 20 July 2015
Extract
I argue that attention to Austin helps us to appreciate that there are significant continuities between his legal theory and that of contemporary positivists; hence, to the extent that Austin’s theory has defects, these are reproduced in the work of contemporary legal positivism. An historical perspective on contemporary philosophy of law thus permits one to appreciate that the basic divide in legal theory is between a tradition whose basic intuition is that law is answerable to a moral ideal of legality and the positivist tradition that sees law as the transmitter of political judgment. For the former, the rule of law tradition, the basic problem for philosophy of law is to explain the distinction between the rule of law and the arbitrary rule of men. For the latter, the rule by law tradition, the basic problem is to explain how law can effectively transmit the judgments made political elites. The rule by law tradition encounters severe difficulties in making sense of the idea of government according to law, difficulties which reach their height once legal positivists accept, following Hart, that philosophy of law has to understand law as a normative phenomenon, which in turns requires taking seriously the internal point of view of legal officials.
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References
1. Hart, HLA, “Positivism and the Separation of Law and Morals”, reprinted in Hart, Essays in Jurisprudence and Philosophy (Oxford: Clarendon Press, 1983) 49.CrossRefGoogle Scholar
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3. Hart, supra note 1 at 50.
4. Ibid at 57, n 25.
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10. Ibid at 28.
11. Ibid at 153-61, 263-68, referring to Raz, Joseph, The Authority of Law: Essays on Law and Morality (Oxford: Clarendon Press, 1979) at 155.CrossRefGoogle Scholar
12. Hart, supra note 7 at 160-61. For the “internal point of view”, see Hart, supra note 2 at 87.
13. Austin, supra note 5 at 281.
14. Hart, supra note 7 at 225-27.
15. Ibid at 226.
16. Ibid at 227-42.
17. Hart, supra note 2 at ch VI.
18. Hart, supra note 1 at 59.
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22. Though he did not choose to place the note there. It was inserted by Robert Campbell, the editor, from John Stuart Mill’s notes of the lectures as originally delivered—see Austin, supra note 5 at 200, n 16.
23. Ibid at 220 [emphasis in original].
24. Ibid at 245 [emphasis in original].
25. Ibid at 246-47.
26. Ibid at 278.
27. Ibid at 278-79. The passages are to be found in Hobbes, Thomas, Leviathan, ed by Tuck, Richard (Cambridge: Cambridge University Press, 1997) at 144-45, 224 Google Scholar.
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29. Eleftheriadis, supra note 28 at 558-59.
30. Ibid.
31. Ibid at 559-60.
32. Hart, supra note 2 at 149.
33. Austin, supra note 5 at 302.
34. Ibid at 301.
35. However, he has no problem with the idea that consent is the basis of government, since consent can be inferred from obedience; ibid at 298.
36. Ibid at 267.
37. Ibid at 267, 269.
38. Ibid at 245-46.
39. He says that if the electorate were sovereign without the king and the peers, “not a single sovereign power” except the power of election of representatives would be exercised “by the sovereign directly”; ibid at 245. But it also then follows that the electorate cannot make a law with the king and the peers.
40. Ibid at 268.
41. Ibid at 268 and the note at that page.
42. Ibid at 247-48.
43. Dicey, AV, An Introduction to the Study of the Law of the Constitution, 8th ed (London: MacMillan, 1924) at 68–72 Google Scholar.
44. Ibid at 70.
45. Ibid at 71-72.
46. Austin, supra note 5 at 280-81.
47. Ibid note at 214-15. For Hart’s quotation of much of this passage, see Hart, supra note 1 at 73.
48. Supra note 1 at 74.
49. Ibid at 75.
50. Austin, supra note 5 note at 215-16.
51. Ibid at 216 [emphasis in original].
52. Ibid at 118-20.
53. Ibid at 218.
54. Ibid at 279-80.
55. Ibid.
56. Ibid at 281-82.
57. Indeed, one should take into account in regard to disobedience the remarks of Hobbes that get referred to as the “rebel’s catechism”, in which he suggests that subjects may disobey when the sovereign’s commands frustrate the ends of sovereignty; Hobbes, supra note 27 at 151.
58. Ibid at 110.
59. Ibid at 192.
60. Austin, supra note 5 at 301-02.
61. Dicey, supra note 43 at 179.
62. Ibid at 183.
63. Ibid at 183-84.
64. Ibid at 189.
65. Ibid.
66. Ibid at 191 [footnote omitted] [emphasis added].
67. Ibid at 179.
68. Ibid note at 65-66.
69. Ibid at 23.
70. Ibid at 196-97.
71. Ibid at 48-49 [emphasis added].
72. Supra note 66.
73. Notice that in a parliamentary order that the statute is in this way problematic has two immediate practical consequences even on the assumption that judges do not have the authority to strike down the statute as invalid. First, when judges are confronted by a problem that results from the fact that a statute is plausibly interpreted as undermining the rule of law, the judges are under a legal duty to try to interpret the statute in a way that preserves rather than undermines the rule of law. Second, if they find that they have no option but to interpret the statute as one that manifests an intention to undermine the rule of law, they are under a legal duty to point this out. And that should be seen as a signal both to parliament and to the public that parliament has strayed from its part in upholding the rule of law.
74. Hobbes, supra note 27 at 194.
75. Dyzenhaus, David, “Hobbes’s Constitutional Theory” in Hobbes, Thomas, Leviathan, ed by Shapiro, Ian (New Haven, CT: Yale University Press, 2010) 453.Google Scholar
76. A sovereign government may appear before a tribunal of its own appointment, but “from such an appearance of a sovereign government, we cannot infer that the government lies under legal duties, or has legal rights against its own subjects”; Austin, supra note 5 at 287-88. Further: “where the sovereign government appears in the character of defendant, it appears to a claim founded on a so called law which it has set to itself. It therefore may defeat the claim by abolishing the law entirely, or by abolishing the law in the particular or specific case”. Rights pursued against the government are therefore merely “analogous” to legal rights since the government can “extinguish [them] by its own authority”; ibid [emphasis in original].
77. Ibid at 134.
78. Ibid at 133.
79. Ibid.
80. Ibid at 218-19.
81. For example: “The proper purpose or end of a sovereign political government, or the purpose or end for which it ought to exist, is the greatest possible advancement of human happiness”, ibid at 290. See further 292-93: One can infer “the causes of that habitual obedience which would be paid to the sovereign by the bulk of an enlightened society” from that purpose. “Supposing that a given society were adequately instructed or enlightened, the habitual obedience to its government which was rendered by the bulk of the community, would exclusively arise from reasons bottomed in utility.”
82. Ibid at 294-95.
83. Ibid at 220.
84. For example: “To the ignorant and bawling fanatics who stun you with their pother about liberty, political or civil liberty seems to be the principal end for which government ought to exists. But the final cause or purpose for which government ought to exist, is the furtherance of the common weal to the greatest possible extent”; ibid at 274.
85. Fuller, Lon L, “Positivism and Fidelity to Law—A Reply to Professor Hart” (1958) 71 Harv LR 630 CrossRefGoogle Scholar.
86. Waldron, supra note 21.
87. Joseph Raz, “The Rule of Law and its Virtue” in Raz, supra note 11 at 210. See Dyzenhaus, supra note 21 at chs 7, 8 and 9.
88. Hart, supra note 1 at 66, a term he took with approval from Austin.
89. Hart, supra note 1 at 197.
90. Harold J Berman, in the conclusion to his history of the Western legal tradition, argues that positivists fail to see that such resources have played a constitutive role both in that tradition and in the tradition of the civil law. He takes the central idea of legal positivism to be that law is an “instrument of domination, a means of effectuating the will of the law-maker”, but finds that this idea only captures part of the historical story. He argues that an understanding of law also has to account for the way it has evolved in part by providing mechanisms to protect the powerless from the arbitrary power of the powerful; Berman, , Law and Revolution: The Formation of the Western Legal Tradition (Cambridge, MA: Harvard University Press, 1983) at 556 Google Scholar.