Before we can attempt any meaningful discussion of the above statement, we must first ‘properly understand’ what is meant by the terms ‘institution of law’ and ‘concept of justice’.
The institution of law relates to law as a system; an assemblage of essential features connected, associated or interdependent so as to form the complex unity of what we know as ‘law’. The nature and identity of these ‘essential features’ has been the primary subject of jurisprudential debate ever since legal theory first became a prominent discipline.
‘The Concept of Law’ by H. L. A. Hart is one such work, a book attempting to establish and identify all the salient features which constitute such a legal system. The particular ‘framework’ to which a jurist personally subscribes will have a fundamental bearing on whether or not that jurist agrees with the above statement. In this essay I shall argue that whilst imperfect, the positivist model of the ‘institution of law’ is the ‘proper understanding’, and that alternative ‘natural law’ and ‘legal interpretivist’ theories do not appropriately account for what constitutes law as an institution.
The ‘concept of justice’ relates to ideas of ‘fairness’, ‘morality’, 'righteousness' etc. [in fact, the Ancient Greek word for justice, "Dikaisyne", is almost identical in meaning to the latter two words above!], ideas with which we are all, at least in a very general sense, familiar. There are however several different schools of thought relating to the specifics of this concept, i.e. different jurists/philosophers have different conceptions/opinions of what primary characteristic makes something ‘just’ or ‘unjust’, and once again, it will depend upon to which of these conceptions a particular jurist subscribes as to whether or not that jurist agrees with the statement at the beginning of this essay. I shall argue that the ‘proper understanding’ of the ‘concept of justice’ is not one which encompasses a normative end; providing a law is properly formed, by an authoritive and ruling sovereign, it is a just law.
In this essay I shall discuss and analyse the theories provided by four major jurisprudential theorists; namely, Hart, Kelsen, Fuller and Dworkin. I shall, in this essay, promote the argument of Hart as being the ‘proper understanding’ of the relationship between law and justice, and shall therefore argue that, properly understood, the institution of law and the concept of justice, as a normative end, are not necessarily related. I shall discuss the criticisms and alternative viewpoints of the other three above named jurists and shall explain, through analysis of their respective theories, why their viewpoints should not, and do not, convincingly dissuade us from departing from Hart’s positivist avenue of understanding.
The aim of Hart’s ‘Concept of Law’ was to understand law, coercion and morality as different but related social phenomena . He does however recognise that there is a ‘minimum content’ of natural law which must exist as a consequence of the human condition [e.g. human vulnerability, limited resources etc]. In other words, because of these limitations there is a necessity fro rules which protect persons and property and which ensure promises are kept. But this does not mean that law is derived from morals or that there is a necessary conceptual relationship between the two. Neither is he saying that if we accept his minimum content that this will guarantee a fair and just society. Of these obligation rules, there are legal rules [which are then sub categorised into primary and secondary rules*], and also moral rules. Hart discusses the similarities and the differences between legal rules and moral ones, suggesting that the differences can broken down under four headings; ‘Importance [moral rules being of more importance than legal rules, which may be important, but may, like the vast majority, be very trivial and unimportant], ‘Immunity from deliberate change’ [legal rules can be changed in a deliberate way, and by their very function, need to, whereas moral rules cannot be deliberately changed], ‘Moral offences are of a voluntary character’ [legal rules may impose strict liability, whereas moral rules always take into account whether or not the agent could have avoided the action] and ‘forms of moral pressure’ [legal pressure involves forms of physical punishment, whereas “with morals…the typical form of pressure consists in appeals to the respect for the rules, as things important in themselves…so moral pressure is characteristically… not by threats or by appeals to fear or interest, but reminders of the moral character of the action contemplated.” (p175)]
*Primary rules are duty imposing rules which grant rights or impose legal obligations upon the citizens [e.g. criminal law is made up of primary rules]. Secondary rules stipulate how primary rules are to be formed validly. There are three types of secondary rule according to Hart: Rules of Change; rules which confer on individuals or groups the procedural power to change/enact legislation in accordance with certain procedures [including lower-order rules of change which confer power on ordinary individuals to change their legal position e.g. by making contracts, wills etc.], Rules of Adjudication; rules which confer competence on individuals to pass judgement, mainly in cases of breaches of primary rules [normally associated with a further power to punish the wrong-doer or compel the wrong-doer to pay damages] and the Rules of Recognition; these are essential to the existence of a legal system, as they determine the criteria by which the validity of the rules of a legal system are decided [the rule of recognition appears in part to be duty-imposing as it requires those who exercise public powers to follow certain rules].
In Chapter 8 of Hart’s Concept of Law, he discusses Justice and Morality. He explains the idea of justice in the application of law as follows: “The connection between justice and the very notion of proceeding by rule is obviously very close. Indeed, it might be said that to apply a law justly to different cases is simply to take seriously the assertion that what is to be applied in different cases is the same general rule, without prejudice, interest or caprice.” Hart pp156-157.
With regards to judicial decision making; he asserts that laws are indeed rules, and recognises that in arriving at decisions, judges have a fairly wide discretion to fill in the gaps where there are no applicable rules, or where rules are uncertain or ambiguous, such as in ‘hard’ cases. And so we see that in hard cases, Judges in effect make the law; of course they will be guided by various sources (e.g. persuasive cases from other jurisdictions relating to similar facts/legal issues) but in the end the judge will base the decision on his/her own conception of justice. Hart describes this as the ‘open texture’ of rules.
And so, we can therefore see that the concept of justice, apart from in a few ‘hard’ cases, is a completely separate notion for the institution of law as a system of primary and secondary rules of zero moral content. Moral rules are explained to be distinct, and whilst Hart admits that often the two will run side by side, the very dissemination of law from morality means that the only consideration of whether a law is just or not is whether the source of that law is itself valid; providing a law is properly formed, by an authoritive and ruling sovereign, it is a just law.
This is a compelling argument in light of the fact that as a legal theorist we wish to make generalisations about all institutions of law. Notions of justice as fairness are therefore not necessarily related to such institutions.
Critics of Hart’s positivist theory concentrate on the assertion that a separation of law and morality/justice does not offer appropriate recognition of the law’s role in promoting human prosperity. Such critics also argue that Hart’s positivism does not afford enough weight to the ‘rule of law’ nor recognise the highly moralized language and practice of the law. Such critics argue that it is not within its source-based character that the most important features of law are to be found, but rather in the law’s ability to promote goodness, human rights and integrity.
In response, whilst clearly discussions of moral considerations must feature prominently within the realms of any legal theory, as it is due in part to reasons of morality that laws are maintained, established or reformed. But it is the existence and the content of the law which as a jurist we must be concerned to identify, and as Hart shows us, to embark upon such identification does not require recourse to moral argument. This is a point of concession made by John Finnis in his book ‘The Truth in Legal Positivism’: “human law is artefact and artifice; and not a conclusion from moral premises.”
Fuller makes two main points of criticism against Hart’s theory in relation to the separation of law and moral values of justice : The first is based on the notion that a legal system cannot be deemed to rest upon source-based characteristics alone as such a theoretical basis does not take account of the essential behaviour-guiding virtues of the rule of law, such as clarity, consistency, transparency, prospectivity etc.
The second criticism provided by Fuller accused Hart of providing inadequate explanation for any duty to obey the law, asking how “an amoral datum called law could have the peculiar quality of creating an obligation to obey it”.
In response to the first of his criticisms, it could be argued that the rule of law is perfectly consistent with a source-based theory; these vitues are not strictly speaking major moral properties in themselves [afterall, few would approve of a clear, consistent, transparent and prospective law which insisted that all married females should cook for their husbands every evening], and even if moral properties were identical to these rule of law ‘virtues’, they would do so as a result of their rule like character, and not because they are necessarily law-like in nature; all social practices/customs can sport these virtues, not only the law!
In response to Fuller’s second criticism, it could be argued that the “peculiar quality” which he talks of can be found as a feature of many moral practices. For example, if I promise that I will buy you a car, then this is a social fact, and yet from this fact has been created a moral obligation of performance, bceause I live in a society in which there is a practice of promising.
And so we can see that the criticisms provided by Fuller do not convincingly suggest that Hart is wrong in his assertion that Justice is not necessarily related to the institution of law.
The important works of Ronald Dworkin, Taking Rights Seriously (1978) and Law's Empire (1986), vehemently and comprehensively reject Hart’s theory, denoting a theory concerned primarily with the question of how cases ought to be decided rather than any source-based analysis. He thus rejects the institutional focus of Hart’s positivism, for an analysis of the conditions by which force may be used by a government to coerce their subjects; a society’s law is the collection of consideration which the courts are morally justified in using to decide a case, and these considerations do not necessarily have to be source-based, argues Dworkin.
Identification of these considerations must be made through interpretation of a societies legal practices. He argues that the controversy which is evident amongst barristers and the judiciary as to how cases of importance should be held is evidence that the law cannot rest on an official consensus, and the evident diversity of what these professionals believe to be the relevant considerations in deciding such cases indicates that no single social rule exists which can validate all relevant moral and non-moral judicial reasoning.
In response, it could be argued that the existence of adverserial arguments in the courts does not itself prove that the law is not based on consensus; controversy is merely a matter of degree, and there is nothing to suggest that the degree of differences in opinion in the court room has passed the threshold beyond wich such consensus might well be doubted; afterall the majority of cases heard in the courts are very straightforward, and involve very little controversy, and it is only the difficult cases which spurn such controversy.
In response to Dworkin’s argument that the evident diversity of judicial reasoning indicates that no single social rule exists which can validate all relevant moral and non-moral judicial reasoning, it can be argued that Hart’s rule of regognition does not attempt to state how to decide cases or try to provide relevant reasons for decision-making. Hart recognises that moral considerations will be operative in some judicial decisions, but the role of legal philosophy is not to explain the authority of principles of morality or logic, and as such, the fact that no social rule exists to validate these principles is irrelevant.
In essence, Dworkin views the role of legal theory as something quite different to what Hart was attempting to achieve through his Concept of Law. This is a point raised by Hart in his 1994 postscript (p240). Hart was attempting a General theory whilst Dworkin did not see that a general theory is possible. In conclusion, Dworkin’s theory does not compel one to disagree with Hart that Justice is not a necessary feature of the institution of law.
Kelsen’s positivism, whilst not identical to Hart’s, does support the separation of law and morals, and as such, supports our argument in this essay that the concept of Justice is not necessarily related to the legal institution.. Kelsen restricts his analysis to ‘norms’ of positive law, and the separation of law an morality means that valid norms can only flow from one another. This is what Kelsen describes the distinction between a legal norm and a moral one; a legal norm will be supported by threat of sanction for breach. Kelsen’s law has one function: the monopolisation of force.
It should be noted that whilst Kelsen talks of norms, his relativism strips his normativity so that it is without its normal moral connotations. The work and theory of Kelsen thus provides support for the notion that the concept of justice does not necessarily connected to the legal institution; there are differences which make it possible to separate the moral from the legal, and these differences whilst might not always seem obvious, can at least be explained on a theoretical level, enough to ensure that we can conclude that justice is not always interrelated to law in any other sense other that the fact that only a valid rule, norm would be a just law, but not in any sense of content of fairness etc.
Just one further point should be made here. Kelsen writes, “Just as natural and positive law govern the same subject-matter, and relate, therefore, to the same norm-object, namely the mutual relationships of men -- so both also have in common the universal form of this governance, namely obligation.” (Kelsen 1928, p. 34) This is a matter of the content of all legal systems. Where there is law there is also morality, and they regulate the same matters by analogous techniques. This is broader than Hart's “minimum content” thesis according to which there are basic rules governing violence, property, fidelity, and kinship that any legal system must encompass if it aims at the survival of social creatures like ourselves (Hart 1994, pp. 193-200)
In conclusion, we can therefore assert that properly understood, a concept of justice as a moral consideration of fairness should not be seen as a necessary relation of an institution of law. It is of course true that there will not exist such an institution which does not simultaneously display notions of justice as a concept, but the point here is that such a concept is not inextricably linked to the law. Analysis of law and morality should be separated, and this is supported by the theory of Kelsen. Counter arguments by Dworkin and Fuller which suggest that such a separation is not only useless, but invalid, are unconvincing, either because, in the case of Fuller, the counter arguments in question can be squared within Hart’s positivist theory, or, in the case of the criticisms provided by Dworkin, do not affect Hart’s conclusions within the scope of the aim of Hart’s theory.
Therefore, if a law has been properly created within the proper understanding of the institution of law as a series of primary and secondary legal rules, then such a law must, according to Hart’s theory, be just. This is not a comment about the moral content of that law, as the law may very well be very unfair or discriminatory, but as we are only concerned with the legal validity, such considerations of ‘fairness’ and equality etc must be viewed through a separate analysis of the moral rules which exist within a society.
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