#16137 - Law As Rules And Principles - Jurisprudence

The model of law as the sovereign’s coercive orders fails to adequately depict the legal system: Hart at 77.

1. Even criminal statutes, those that most resemble orders backed by threats, are different because they are equally binding on those who enact them.

2. There are other varieties of law (public/private power-conferring laws) that cannot be construed reasonably as orders backed by threats.

3. There are laws that differ in mode of origin.

4. Account of a habitually obeyed sovereign necessarily exempt from all legal limitation doesn’t take account of the continuity of laws or the identification of legislature with the electorate

Devices attempting to bring the analysis within the OBT (orders backed by threats) theory also fail: Hart at 78.

1. Tacit order: only depicts simple scenarios (eg. general who deliberately refrains from interfering with orders of subordinates) and fails to take account of the complex nature of legal system

2. Power-conferring laws as fragments of rules: departs too radically from ordinary conceptions.

3. All rules are directed only to officials: no more consistent with our ordinary thinking than claiming that all rules of a sport are directed only at umpires.

4. Separating legislature in its official capacity and private capacity: supplements the theory with something it doesn’t contain – a rule defining what must be done to legislate (only with this rule can legislature have an official capacity)

This failure is attributable to the fact that the theory doesn’t include and cannot yield the idea of a rule, without which we cannot understand even the most elementary of laws.

Thus, a new idea is needed: a conception of rules as primary and secondary rules.

1. Primary rules are those that require people to do/abstain from certain actions, whether they wish to or not.

2. Secondary rules are those parasitic upon primary rules, in that they provide that people who do certain things may, by so doing, introduce new rules of the primary type.

We start with proposition that where laws exist human conduct becomes somewhat non-optional or obligatory, but the idea of obligation is complicated somehow by its definition.

1. There is a difference between being obliged to do something and having an obligation:

   1. If we take the gunman situation, we can say that if person hands over the money, he was obliged to do so, but it’s implausible to say that he ‘had an obligation’ or ‘duty’ to hand it over. Being obliged simply relates to the motives and beliefs that some harm would result if you didn’t do as asked. It is not enough to found an ‘obligation’.

   2. We wouldn’t say that B was obliged to hand over the money if the harm threatened was trivial in comparison with the worth of the money, or if there was no reasonable probability that A would implement the harm threatened. Thus, the psychological component of being ‘obliged’ is not necessary for obligation; B’s beliefs, fears and motives are irrelevant to whether he had an obligation.

Some theorists, like Austin, recognize this and conceptualize obligation in terms of prediction, but this is to be rejected.

1. It fails to take account of the fact that transgressions do not merely predict sanctions, but also justify them.

2. Likelihood of punishment is not a precondition: I still have an obligation to do X even if I bribed the police/have no chance of getting caught if I don’t.

   1. However, it is true that in normal legal systems, likelihood of punishment and illegality have a high correlation. There’s no point in talking about obligations without predictability of punishment, so such a statement can be justified on the presupposition of a normal working legal system (like the in/out rule in cricket presupposes that umpires would judge accurately, though this doesn’t always happen in the individual case)

Obligations are marked by certain characteristics involving social pressure.

1. The seriousness of social pressure behind rules determines whether they are thought to give rise to obligations.

   1. There are many social rules (‘take your hat off’, don’t say ‘you was’) that would be absurd to conceive of as obligations. Many social rules are conceived of as imposing obligations when the social pressure and general demand for conformity are great, and when pressure is physical but administered by the community rather than officials, we tend to conceptualize them as a primitive/rudimentary form of law.

2. The rules supported by this serious pressure are thought important because they are believed to be necessary to the maintenance of social life/some important feature of it.

3. Conduct required by these rules may, while benefiting others, conflict with what the person who owes the duty wishes to do (duty/interest conflicts).

However, we must not confuse these characteristics with definition, as obligations are not defined by the social pressure. Although the role of social pressure is great, we must reject the prediction theory because a correct analysis of the law depends on separating the pressure from determining whether conduct falls under a rule.

1. The external/internal view difference (external=observer who doesn’t accept the rules; internal=member of group that accepts and uses the rules to guide conduct) can help understand this.

   1. External can take the form of ‘extreme external view’, where the observer observes without commenting on the reasons the members of the group obey the rules; the view of these people would merely capture the predictability of conduct, such as the increased likelihood of people stopping when the traffic light is red. It doesn’t give any more guidance, and misses out a whole dimension of law.

   2. There’s no need for the external viewer to adopt expressions like “I have an obligation”, and merely expressing everything in terms of probability of harm will suffice; as such, there is a tension between external and internal viewers (who subscribe by rules because they agree with them).

2. As such, the role of legal theorists is to not take any point of view out of context; the strongest criticism of the predictive theory, thus, is that it fails to take account of the internal aspect of rules.

A primitive society without legislatures, courts or officials may exist based on a system of unofficial rules, but there are defects.

1. There must be rules that forbid the free use of violence, and the internal observers must outnumber the external observers, so that a population of people of roughly equal strength would endure.

2. Only a small community of closely-knit individuals can live successfully under such a regime, because these rules won’t form a system but rather resemble our rules of etiquette, and there would be no procedure to settle doubt regarding what the rules are/the scope of the rules.

3. The rules would be static – the only mode of change is evolution; there is no means of deliberately adapting rules to changing circumstances.

4. Social pressure by which the rules are maintained is inefficacious – without an agency specifically empowered to resolve disputes as to whether a rule...