IS AUSTIN DEAD? DID HART REALLY LAY REST TO THE IMPERATIVIST ACCOUNT OF LAW?- 1/3 by Donkor Selikem Timothy

The field of jurisprudence comes off often as the most vexatious arena of legal studies to the law student, if not the more esoteric. To the student of Philosophy, this is the only field of law which is worth cogitating on. This is not to suggest a fragmented divorce line between Law and Philosophy since both are non-identical Siamese twins, conjoined in thought yet divided in practice. It has been recounted by H.L Hart in the ‘concept of law’ that, the most debated concept in the history of academic work is the concept of Law.  I must say that this is quite a hasty pronouncement by the professor, or maybe he never met the concept of ‘morality’. Of course he did, may be he meant the concept which is worth discussing or debating on.

 

The the larger debate about ‘Law’ has not being about its purpose nor about its function but about its meaning and validity. To the student of legal theory, the question of what is law, is not a question of fact nor one of prudence but one engulfed in analytical philosophy. What am i even saying? I mean to say or I am saying, when you meet someone who posits the question ‘what is law?”, the person is not asking you to pinpoint examples of legal texts or statutes, rather, the person is demanding a more abstract answer, which is, what is that one thing which makes all laws Law and all non-laws, a non-law?. The question what is law, is not a lexical task, as the question what makes 2+2=4, is a question of what quantitative exchange value the market woman employs in her daily activities. Each demands a scrutiny, an examination engrossed in philosophical and analytical research, one which is exhaustive and burdensome. In this essay then, an examination will be made, though a comparative one, between Austinian account of Law and that of Hart. I shall imply an antithesis as a matter of tangent between Austin’s account and Hart’s account. I shall say, in passing that, it is a commonly held belief that the Hart’s account is truer and more sound than that of Austin. I shall in rejection of this widely held belief, point out that, Austin’s account is not substantively or contemporarily inaccurate.

 

The first in-depth and exhaustive reply or attempt to reply, to the question ‘What is law’ was given by John Austin in his work ‘The province of jurisprudence determined’. Austin, known for his positivistic attitude towards law, suggests that, law, properly so called, without any attachment by resemblance or by analogy, is the law so made by man. Austin then, in a full opposition to the view of Augustine and Thomas Aquinas, rejected morality, divinity or rationality as the source of the law.  It is worth noting that the question ‘what is law’ , is a Siamese question , embedded with two adjunct questions , what is the source of law ? and where does the law gain its validity as a ‘law’ from. I shall regard this as the twin paradox.

On the question of what is the source of the law, by way of recapitulation, Austin states that, the source of the law is from Man. By Man, Austin means not just any man, be it a half head nor a one limb, but one man. He meant a sovereign. To Austin, being a sovereign is not a question of Law, rather a question of Fact. Who is a sovereign is not determined by law rather, it is determined by the social facts in a particular society. (You might never see this in any test-book nor in any article, not even in Austin’s own treatise, I shall admit that this is my personal inference from reading the Province of Jurisprudence determined, and I shall say that, this inference was so legitimately drawn to escape a suppose contradiction , which I shall later deal with , which is seemingly implied in Austianian theory of Law’).  To Austin, a statement of order, backed by sanction, in a train of command, made by a sovereign is what law is. Thus what is law, is a question of form and not substance. What do I mean? Unlike the natural law theorists, what is a law is a question of the substance, be it the effect or the nature of a particular law. That a law which promotes morality or is just, is law and one which does otherwise is not Law. But Austin made the question of Law, a question of fact and form. That is, what is law , simply , is an order of a sovereign , which is imperative and carries a negative effect of sanction.

 

On the question of what gives a law its validity, Austin replies, the sovereign. That is, a law is only law because its force of law comes from a sovereign and no other, thus, only a sovereign, strictly put , is the maker of the law and the validator of it. Unlike the natural law theorist, a statement of law is a law , because of its universal justness and not because it was so made by any one man or two.  The above , in a simplistic way , is what represents the Austinian account of law. It shall onwards be termed as the imperativist notion of Law.

 

H.L Hart , a student of Gilbert Ryle , a one-time occupant of the oxford chair of jurisprudence , which I intend occupying in the future , rejected outrightly the Austinian account of Law. I shall state the Hartian position in a negative form – as a reaction and a response to Austin and not necessarily a direct look into the Hartian theory of Law.

According to Hart , the imperativist notion of Law fails on three borders.  One , because it is unrepresentative of Law as we know it. Two because what we perceive as the source of the validity of law is not in accordance with the Austinian account and thirdly , not all laws have the character of a command or are backed by sanctions.

Per the Hartian position on the first ground of rejecting the Austinian theory of law , there are thousands of laws which we regard as law , which are not made by sovereigns in the sense referred to by Austin. An example of such laws is contract law. As any student of law knows , a contractual engagement is merely a promise among two or more persons undertaken in uberimae fidei. This promise has a character of law , enforceable by court yet this kind of law is made by individuals who are not sovereigns in the strict sense of the word. ( this position , I shall later reject by an analogy , by way of degree) .

Secondly , Hart suggests that , in the Austinian account of Law , the defining element of the sovereign is that , himself is not bound by the law he makes( avoid the gender insensitive language). In that , the sovereign is at will to change the law as it wants and himself is unbound by any other person. His will is free and his law making powers add ad infinitum. Hart suggests that if we refer to our contemporary arrangements , the characterization made by Austin is wrong. Let’s refer to Ghana. Under Article 11 (1) (b) , parliament has power to legislate – make laws. Yet the said parliamentarians who make the law , are themselves bound by the law , such that , the Austinian account that a law maker , the sovereign , must not be bound by the law he makes , tells an inaccurate picture about law and the law-making process and also that , the will of the sovereign is uncoerced by no other person is inaccurate since that of our parliamentarians , who are law makers , are coerced .

Thirdly , Hart states that , a statement is no less a law , if it is not backed by a sanction. Such that , a law can be a law , without having penal sanctions for its disobedience. Under the 1992 constitution of Ghana , Art 42 gives power to citizens of age 18 and above , of sound mind to vote. This is the Law. But any citizen who fails to vote, does not bear criminal liability nor penal capital for his disobedience. In this sense , Austinian account of law , was only depictive of criminal law and not all forms of law. Such that not all laws carry sanctions.

I shall end here and my next write up on this same subject , under this same topic , shall entail arguments in defense of Austin and an attempt to reject the Hartian arguments.