Secondary and primary rules

Recall Hart’s claim that we need secondary rules to support and add to primary rules. For Hart, secondary rules do not obligate us in our primary behaviour but only select some legally recognized rules from those behaviours. Of course, some of the primary rules selected for the law such as ‘Don’t kill!’ will also be morally binding, but others will not. Instead they will either be prudentially binding (‘Obey traffic signals!’) or instrumentally binding (‘Have a judge sign your marriage certificate if you want to get married’). For Hart, the main point is that the legal recognition given to a primary rule has nothing to do with the source of that rule’s binding character – morality, prudence, instrumental efficiency – but has everything to do with its being secondarily selected as law.

In sum, Hart defines law in terms of its social function, as an efficient tool for addressing problems of order, coordination, and conflict resolution that cannot be satisfactorily resolved by appeal-ing solely to moral rules, customary conventions, or instrumental calculations undertaken from moment to moment. Because moral-ity is part of the problem, it cannot be a necessary part of the solu-tion. To be sure, the most commonly accepted moral rules against killing and stealing will provide a common source for criminal law, but these have as much basis in self-interest as they do in morality.

Therefore the secondary rules that define law needn’t make reference to justice or the social good and may even be unjust when judged by some standards of popular morality (such as the old laws that used to punish entire families for crimes committed by one of their members). Many positivists welcome moral criticism of the law;

what they don’t welcome is the idea that law must be just before it can be recognized as law.

2.2.3 Command v. rule-based positivism: Hart v. Hobbes and Austin

Some of the earliest proponents of legal positivism subscribed to a commandtheory of law. In the Leviathan, Hobbes asserts that ‘law, properly, is the word of him that by right hath command over others’

(1994: XV.41). At first blush, this assertion is indistinguishable from similar assertions made by Roman and medieval natural law the-orists, who believed that the ultimate authority behind natural law was God’s command. Hobbes, however, interprets the main precept of natural law (Do good and avoid evil!) in terms of a very different concept of human nature and self-preservation than that held by his natural law predecessors. For Hobbes, human beings are merely complex machines driven by an insatiable desire to satisfy their pecu-liar wants and to acquire ever more power over others. In the words of Hobbes: ‘Good and evil are names that signify our appetites and aversions, and which in different tempers, customs, and doctrines of men are different’ (ibid.: XV.40).

On Hobbes’s interpretation, the law of nature commands each person to do whatever he or she thinks is necessary in order to achieve his or her personal good, which may conflict with what others think is necessary for their personal good. Hence, left to their own devices, persons will interpret the law of nature in a way that cannot but lead to a ‘war of all against all’. Fortunately for us, our nature constrains us to agree on at least one good – that of peaceful cohabitation. But given our tendency to interpret the law of nature in ways that privilege our own self-preservation over others, our natural inclination to seek peace will be mutually satisfied only if we all agree to hand over our right to interpret and enforce the law of nature to a single, sovereign body (in Hart’s terms, we must first consent to a secondary rule which defines law as what the designated Sovereign commands).

By handing over our right to interpret the law of nature to the Sovereign, we are effectively letting him tell us what God’s moral commandments mean, so that moral right and wrong is essentially reduced to whatever the Sovereign says it is. In order to be truly sov-ereign, the Sovereign should be one person (a monarch) or a unified body of persons having absolute power to make, interpret, and apply law. To recall Schmitt’s thinking (which owes much to Hobbes), the Sovereign must be absolutely unitary and above the law if the meaning and enforcement of law is to be known and applied with

certainty; otherwise we descend into a state of anarchy. Hobbes sums all this up in his pithy dictum that ‘Where there is no common power, there is no law, where no law, no injustice’ (ibid.: XIII.13).

As we saw earlier, Hobbes’s view that the Sovereign must himself be above the law runs contrary to the rule of law, which imposes limits on the arbitrary exercise of legal power. Another legal pos-itivist, John Austin (1790–1859) disagreed with Hobbes on this point. He held that a Sovereign composed of several branches of power or containing more than one person (such as a body of legis-lators) might limit the power of one branch by another or the power of one faction by another (Austin 1995: Lecture VI). Austin differs from Hobbes in other respects as well. Austin does not reduce moral right and wrong to what the Sovereign makes legal or illegal. In other words, he does not endorse the principle that ‘might makes right’. However, he agrees with Hobbes that it is the power to threaten punishment that distinguishes the binding nature of legal obligation from the binding nature of moral obligation. In his words: ‘Being liable to the evil from you if I comply not with a wish which you signify, I am bound or obliged by your command, or lie under a duty to obey it’ (Austin 1995, Lecture I).

This is where Austin and Hart part company. Hart argues that some laws cannot be understood as sanction-backed commands. For one thing, many laws do not take the form of criminal codes that threaten punishment for committing proscribed acts. Some laws empower private persons to make contracts and initiate civil suits, and they empower public persons to make, apply, and enforce laws.

Still, other laws (such as traffic ordinances) help us to coordinate our actions so that we do not accidentally harm each other. In all these instances there exists a more compelling reason – moral, prudential, or personal – for obeying the law than fear of punishment (Hart 1991: ch. III).

This takes us to Hart’s second objection to the command theory:

laws are more like general rules than orders. Primary rules – be they moral or legal – obligate us to behave in certain ways for a reason that we can appeal to in criticizing the behaviour of those who break or deviate from the law. On the Austinian account, the only reason why people feel legally bound to obey the law is fear of bad conse-quences. In this respect their reason for being law-abiding is no different from that of a person who obeys a gunman’s threat to shoot if she does not hand over her money (ibid.: ch. IV).

But isn’t Hart overlooking the fact that many persons obey the law uncritically, out of sheer habit or fear of being punished? And if that is so, mustn’t we agree with Austin that what defines law is its ability to coerce us? Hart does not dispute the possibility that many people relate uncritically to the law. They habitually conform to the law without ever thinking why, unless it is to avoid painful consequences.

However, for Hart what distinguishes law from a power-backed command is not that average citizens relate to the law in a critical way, but that lawyers, judges, and government officials relate to it in this fashion (ibid.: 113).

This response seems to support, rather than refute, Austin’s pos-ition. Hart’s original point against Austin – that power-backed threats alone create no obligation – is now qualified to apply mainly to a select group of officials and lawyers. But in that case, govern-ments would indeed be like gunmen – gunmen who justify their threats to themselves but not to those they threaten. Hence Hart says that in a healthy society most citizens will also adopt an ‘internal’

attitude toward the law, seeing it as having a rational basis in the con-stitution.

2.3. MORALITY AND THE RULE OF LAW: FINNIS, RAZ, AND FULLER

Natural law critics argue that legal positivists cannot explain the difference between being legally coerced and being legally obligated.

In their opinion, persons feel legally obligated to do something only when they think it is morally right to do it. But there is a problem with this criticism. As previously noted, it is difficult to suppose that all legal obligations come from a single, universal moral standard, especially given disputes over what that standard is. Instead, if the criticism of positivism is valid, it must be because the reason moti-vating legal obligation is related to morality in a less direct way. As John Finnis notes: ‘[A] natural law theory need not have as its prin-cipal concern . . . the affirmation that ‘unjust laws are not law’ . . . [but] to identify the principles of the limits of the Rule of Law’

(Finnis 1980: XII.1).

The most crucial element of natural law theory, as Finnis under-stands it, is the ‘limits of the Rule of Law’. This term was origi-nally coined by the late nineteenth-century Oxford law professor A. V. Dicey to indicate what he took to be the inherent rationality

and impartiality of private law concerning property and contract, in contrast to the inherent partiality of public, statutory law, oriented toward particular social goods. Following his lead, some contempo-rary libertarians, such as F. A. von Hayek, have argued that any gov-ernment regulation of the economy or any social programmes that redistribute private wealth from one individual to another, ‘politicize’

the realm of private law, thereby violating the rule of law. In his opinion, public interference in the private sphere – even when under-taken by a substantial democratic majority – undermines the supreme value that the rule of law is supposed to serve: the freedom of individuals rationally to plan their lives in accordance with the fixed rules of the market and of private law (Hayek 1960:

153–4, 227–8).

As noted earlier, the limits imposed on government officials by the rule of law do indeed constrain the arbitrary use of legal power.

Finnis and other natural law theorists would also agree with Dicey and Hayek that the rule of law is necessary for providing a relatively fixed legal system within which rational persons can freely plan their lives. However, unlike Dicey and Hayek, natural law theorists would argue that the rule of law does not require the rigid separation of public and private law, since the aim of the rule of law is not just to protect individual freedom from arbitrary government power but also to promote justice and the public good.

Finnis, for example, argues that the rule of law is designed to rule out a wider range of arbitrary government power, including: (a) making, applying, and executing the law in ways that are intended to advance only the interests of some in opposition to the interests of everyone (the common good); (b) usurping the rightful authority of another who is delegated responsibility for making, applying, and executing the law; (c) making laws that violate the formal require-ments of providing fair warning and deny people ‘the dignity of self-direction’, such as secret or retrospective laws; and (d) passing laws that are substantively unjust, viz., laws that either unreasonably permit or require the unequal treatment of different classes of persons or unreasonably deny a fundamental right to all persons (Finnis 1980: XII.2).

Obviously, these limits on the making, applying, and executing of law would distinguish legal obligation in Hart’s sense from arbitrary legal coercion in Austin’s sense. In that case legal positivism would indirectly imply a minimal morality. Joseph Raz agrees. In his

opinion, even an unjust legal system must exclude forms of moral arbitrariness that fall under (b) and (c). To be more precise, laws must be:

1. prospective, 2. relatively stable,

3. made in conformity with clear secondary rules, 4. applied by an independent judiciary,

5. applied in open and fair hearings,

6. susceptible to judicial review by higher courts,

7. applied in a timely manner, without excessive court delays, costs, etc.,

8. free from the arbitrary discretion of crime prevention agencies.

Raz goes on to argue that this instrumental conception of the rule of law is compatible with laws or legal systems – such as legal systems that permit slavery and racial discrimination or deny basic freedoms to some legal subjects – that do not aim at bringing about justice or the common good (Raz 1979: 210–29).

But natural law theorists might question whether the rule of law is as morally neutral as Raz claims it is. According to Raz, laws and legal systems that embody the rule of law can aim at morally bad and unjust purposes so long as they respect individuals’ freedom and dignity as rational choosers. But this ‘inner morality’ (as Lon Fuller refers to it) contains a minimal level of justice and goodness. It satisfies the principle of formal justice in treating everyone as equally subject to the law and equally capable of rationally abiding by it.

Slaves as well as masters should be told what the law is so that all concerned can plan their lives accordingly. The law satisfies the prin-ciple of substantive justice in treating each individual as a free, ratio-nal agent with certain basic rights. Firatio-nally, the rule of law satisfies the common good by creating a stable framework for allowing people to pursue their own – and society’s – good.

Natural law theorists argue, and Raz agrees, that this morally minimalist interpretation of the rule of law is not sufficient to account for legal obligation. In the words of Fuller, it establishes only a prima facie obligation, or obligation that holds so long as other conditions are met (Fuller 1969). What are these conditions?

Let us assume that a legal system has produced a bad or unjust law.

For Finnis, that fact alone would not necessarily warrant disobeying

it. In his opinion, our prima facie obligation to obey the law is rela-tiveto the degree that the entire legal system embodies the rule of law – an embodiment that is dependent on the relative satisfaction of the four factors mentioned above. However, contrary to Raz’s understanding of the rule of law, two of these conditions (a and d) refer explicitly to moral conditions – the moral intentions of law-makers and the substantive justice and goodness of the law itself – that go beyond the ‘inner morality of law’ as Fuller understands it.

According to Finnis, our prima facie obligation to obey may be over-ridden if the law imposes a grave injustice or harm, such as slavery or racial discrimination, or if its underlying intention is to advance the partial interests of a particular class of persons in a way that bears no relationship to the common good (for example, through the non-competitive awarding of lucrative public building contracts to only those businesses that contribute to the campaign funds of elected officials).