Austin was a relatively unknown figure during his tenure as the first professor of jurisprudence at University College London in 1826–32. After his death, however, two of his works, The Province of Jurisprudence Determined (1832) and Lectures on Jurisprudence (4th ed. 1879), became standard texts in English legal education and played a pivotal role in the 20th-century development of legal positivism and of the philosophy of law more generally. Although Austin was directly influenced by Bentham’s writings, he had access to only a relatively small portion of them; he was therefore not fully aware of the complexity and originality of Bentham’s views. Accordingly, Austin’s legal positivism is often treated as a simplified, though elegant and accessible, presentation of the basic tenets of Bentham’s theory. Austin famously declared that “the existence of law is one thing; its merit or demerit is another,” which would become an oft-cited slogan of legal positivism.
Law, said Austin, is the command of the sovereign backed by threat of sanction. Commands are necessarily general prescriptions that signify a desire of the commanding sovereign that an action be done or not done. Like Bentham, Austin characterized the sovereign as a person or group of persons who are habitually obeyed by the bulk of a political community but who do not habitually obey anyone else. “Habitual obedience” in Austin’s theory is a relatively simple notion as compared with Bentham’s interactional modeclass="underline" all that it requires is a correspondence between what the sovereign commands and what the bulk of a political community actually does. In Austin’s view, law does not provide any unique motivational force, and why citizens obey it—i.e., the reason for which they obey it—is therefore not important. The consequence of this view, however, is that at least the threat of sanction is necessary to motivate people to obey. In the late 19th century, various scholars began to develop criticisms of this simple but powerful explanation of law, though the canonical refutation of Austin’s positivism did not emerge until the mid-20th century. Philosophy of law from the early 20th century
The 20th century was very much the century of legal positivism: the two preeminent figures in the philosophy of law, the Austrian-born jurist Hans Kelsen (1881–1973) and the English legal theorist H.L.A. Hart (1907–92), both developed influential versions of a positivist theory of the nature of law. Defenders of antipositivist views, such as the American constitutional lawyer Ronald Dworkin (1931–2013) and the Australian Thomist John Finnis, developed their views by way of response, in particular to Hart. At the same time, Hart’s most-prominent student and the most-influential figure in late 20th-century philosophy of law, Joseph Raz, worked within the positivist framework, developing distinctive positions growing out of both Kelsen and Hart. During the same period, there also emerged “realist” schools of legal philosophy—one in Scandinavia and one in the United States—that were basically positivist in orientation but were concerned with very different philosophical (in the case of the Scandinavians) and practical (in the case of the Americans) questions from those considered by Kelsen and Hart. Positivism Hans Kelsen
Kelsen, a fierce opponent of natural-law theories, identified the central problem of the philosophy of law as how to explain the normative force of law—i.e., law’s claim to rightfully tell people what they ought to do (such that, for example, they have an obligation of obedience to the law). (Kelsen also thought that law’s commands are directed most fundamentally at officials of the legal system, such as judges, telling them what sanctions to apply to citizens on the basis of the latter’s conduct.) He rejected the idea that law’s normative force could derive from its moral status: like all theorists in the legal-positivist tradition, he acknowledged that laws could fail to be morally justified. But how then to explain the difference between, for example, threats of brute force (“Hand over the money, or I will shoot you”) and legal demands?
When a judge hears a case and decides for the plaintiff, ordering the defendant to pay monetary damages, the judge’s authority to do so derives from rules of the legal system that authorize the judge to render such decisions, subject to various procedural and substantive constraints enacted by a legislature. But what gives those rules their authority? Perhaps it is the constitution, the foundational document of a legal system, which establishes a legislature entitled to enact procedural and substantive rules governing court decisions and specifies who can exercise the power of a judge and under what circumstances. But then what gives the constitution the right to do that? An infinite regress now looms if one posits some further authority-granting source.
Kelsen was strongly influenced by Neo-Kantian tendencies in German-speaking philosophy in the early 20th century and was accordingly attracted to the “transcendental” strategy of argument that Immanuel Kant (1724–1804) made famous: given the existence of some undisputed phenomenon, one is entitled to infer or presuppose the existence of whatever is needed to explain it. Given the undisputed fact that law claims authority, the only way to avoid an infinite regress is to assume that the authority of the foundational document or constitution derives from a “basic norm” (Grundnorm in German), the substance of which is something like “the constitution is to be obeyed.”
Kelsen defended a “pure theory” of law—that is, one that purports to explain law’s normativity without invoking any empirical facts about people’s beliefs, attitudes, or behaviour. A fatal problem with transcendental arguments, however, is that they are vulnerable to objections based on denying the reality of what the theory purports to explain: the laws do claim authority, but perhaps that authority is merely apparent, simply unreal. Hart’s version of legal positivism eschewed transcendental arguments but took seriously the same basic problem that animated Kelsen’s theory of law. H.L.A. Hart
Hart, who spent his academic career at the University of Oxford, the centre of the “ordinary language” movement associated with J.L. Austin (1911–60) and Ludwig Wittgenstein (1889–1951), framed his theory as an attempt to understand the ordinary concept of law—the concept familiar to any citizen of an advanced modern legal system. Hart criticized the command theories of law associated with John Austin and Bentham because of their failure to make sense of all those familiar instances of laws that confer legal powers on individuals rather than commanding them to abstain from particular conduct on pain of punishment. A criminal prohibition on murder may be a command backed by a threat of sanction, but a law authorizing an individual to make a valid will disposing of his property after his death is not. Power-conferring rules are central features of legal systems, and command theories, Hart contended, cannot explain them.
The problem, Hart thought, went farther. The familiar idea that all law essentially involves sanctions is also mistaken, whether in the form of Austin’s view that every law is a command backed by a threat of punishment or of Kelsen’s view that laws tell officials when to sanction citizens. The problem, according to Hart, is that one typically thinks of law as, at least sometimes, imposing obligations to act (or not to act) in certain ways. If law is essentially about threats, however, then talk of having an obligation makes no sense: no one thinks, after all, that one has an obligation to hand over one’s money to a robber, even if doing so would be prudent in the circumstances. Hart, in short, agreed with Kelsen that the law claims a kind of authority, a right to tell people what they ought (or ought not) to do, not simply what they must (or must not) do on pain of penalty.