PFHCSC: Semana 8, El Derecho y sus virtudes

Semana 8: Marmor: Command Theory and Social Rules

Central Problem: It is not evident that Hart shares Kelsen’s insight that the only way in which we can explain the idea of legality is by pointing to norms that grant actions and events with legal meaning. There must be some norms that identify the ways in which law is created and modified in the relevant community. These are the rules of recognition. However, Hart does not share Kelsen’s view that these norms have to be presupposed. The rules of recognition are social rules, actually followed (mostly) by judges and other legal officials, and, as such, can be observed and accounted for in terms of observing people’s conduct, beliefs, and attitudes.

Central Thesis: (i) Hart: Austin was wrong: First, Austin failed to recognize that sovereignty is an institution, and institutions are constituted by rules. Second, he failed to recognize that rules are not merely regularities of behaviour. Then it is not possible to offer a reductive explanation of legal validity in terms of a sociological conception of sovereignty. (ii) Hart’s theory of law takes Kelsen’s foundation to its reasonable conclusions, relying on some of Kelsen’s best insights but amending them in some crucial aspects. (iii) Hart´s theory of law is reductive all the way through. It extends to a quasi-sociological account of the normativity of law.

Austin´s Command Theory. Law is an expression of political sovereignty. Laws ability to compel behaviour is what makes it a unique instrument of social control (38). It rests in two assumptions:

i.            Law always has the form of a command: it consists of instructions or directives issued by some people in order to direct the conduct of others and it is backed by a threat or a sanction. It can be reduced to the form “Do this or else…” (36-7). So it assumes:

·         Every law imposes obligations

·         Every legal norm is backed by a threat or a sanction.

ii.            Law necessarily originates from the political sovereign: what makes action-guiding instructions legal has to do with the origins and the function of the guidance: If the guidance emanates from the political sovereign and purports to function as an exercise of sovereignty, then it is law (36).

Hart´s critic of Austin.

Law is not only comprised by commands. Austin´s command model of the law is too simplistic because it fails to see other components and major functions of the law other than issuing commands (38). Only a small fraction of the law may be said to consist of commands (37), Laws often confer legal power (an agent may introduce a change in the pre-existing normative relations that obtain). Criminal code may seem to follow Austin´s description but not contracts. The structure of such norms is entirely conditional: If you want to form a legally binding contract, this is how it is done, and law does not oblige anyone to form a contract (38). Austin may stress that the model still applies: “Do this . . . or else your attempt to form a legally biding contract would fail.” Hart found this solution very inadequate, and for two main reasons.

·         We can distinguish norms of the “do this…or else,” form where there is a clear distinction between requirements and sanctions; from norms that constitute or determine new normative relations, where you cannot separate requirements from the consequences. A rule that determines what counts as a valid contract only makes sense on the basis of the assumption that, without complying with the rule, you have not formed a valid contract (38).

·         There is also a difference between the function of imposing obligations and the function of conferring power (39). When establishing a contract parties would want to have the enforcement services of the law at their disposal in case something goes wrong just as Kelsen thought. But Kelsen missed the point that the main function of law is to guide conduct, not only to tell officials when to use force (tax and fine) (40).

The nature of Legal Norms. There are at least three different questions that are entangled in this debate among Austin, Kelsen, and Hart:

·         What are the main functions of law in society and how closely those functions are tied to the use of force, and law’s ability to impose sanctions?

·         Are laws essentially instructions addressed by some people to others?

·         Can all legal norms be reduced to one general form?

	Austin 1790-1859	Kelsen 1881-1973	Hart 1907-1992
Force	Law is an instrument of political sovereignty (41)	The main function of the law is to monopolize the use of the force (41)	As there are different kinds of norms they have different functions. Both Austin and Kelsen exaggerate the role of sanctions. Law does not always need sanctions to fulfil its functions
Public	All except for the sovereign	Instructions to officials when and how to use force (40)	The law is there to guide the conduct of subjects (40)
Form	‘Do this…or else’ (40)	Fundamental norm	There are different kinds of norms, so they cannot be reduced to the same basic model (41)

Regarding these three big questions Hart then has three more specific critics (which are really two: sovereignty is an institution and rules are not regularities of behaviour) (47).

1. Law does not necessarily emanate from political sovereignty. Austin´s is a reductive theory of law (to explain law in terms of something else) since it offers a definition of sovereignty in non-judicial terms (44). Thus Austin explicates sovereignty in sociological terms (habits of obedience (45). But it is not possible to offer a reductive explanation of legal validity in terms of sociological explanation of sovereignty (47). Sovereignty may be explained sociologically, but not the role of sovereignty as source of law. Austin´s account then has two main problems:

2.       Austin cannot explicate the sources of law in terms of political sovereignty because the concept of sovereignty is a juridical one. Law partly constitutes our conceptions of sovereignty; it cannot be reduced to it (law as a game: rules are both foundational/constitutive and functional. (46)). The role of the sovereign is itself constituted by rules. For instance there is nothing in Austin´s account to explain how rules of transition between sovereign x to sovereign y are possible (46-47). So Austin failed to see that sovereignty is an institution and institutions are constituted by rules.

3.       Austin missed the following distinction (47):

a.       Regularity of behaviour. Like the habit of obedience or drinking tea. Rules are absent.

b.       Following a rule. When we follow a rule, however, we regard the rule itself as a reason for doing what it requires.

So Austin failed to realize that rules are not merely regularities of behaviour. Habit—a regularity of behaviour—in accordance with X’s instructions would not be sufficient to explain what makes X the political sovereign in the relevant sense. What we need is “the idea of a rule, without which we cannot hope to elucidate even the most elementary forms of law.” We need some normative framework already in place before we can come to interpret certain actions or events to have the legal significance that they do.

Hart: A reductive version of Kelsen´s Theory of the Basic Norm. In every developed legal system there are rules of two kinds:

Primary Rules: prescribe certain modes of conduct, such as “Do this . . .” or “Don’t do that. . . .” Their object is the guidance of behaviour (48).

Secondary Rules: They take other rules as their object and guide ways in which rules can be created, modified, or abolished, or ways in which interpretation of rules is to be adjudicated.

Rules of Recognition: Social rules that identify certain types of actions or events as the kinds of actions or events that create modify or abolish law in that community. Thus they identify in non-legal terms the source of legally valid norms when the legal chain if validity comes to an end (49).

Master Rule of Recognition: rules of recognition would typically manifest a hierarchical structure subsumed under one main or master rule of recognition; for example, state law is subordinate to federal law.

Kelsen	Hart
	Rules of Recognition
Basic Norm: Theoretical necessity: presupposition	Master Rule of Recognition: actual social norm followed by the community
Failed antireductionist (51)	Reductionist

Reductive Account of Social Rules: Explains the social phenomena of law in terms of actual patterns of conduct, beliefs and attitudes

·         Most members of S regularly conform in their behaviour to the content of R, and

·         Most members of S accept R as a rule, which means that:

(a) For most members of S, the existence of R constitutes a reason for action in accordance to R,

(b) and members of S tend to employ R and refer to it as grounds for exerting pressure on other members to con- form to R and as grounds for criticizing deviations from conformity to R.

Hart identifies three possible ways in which one can account for social rules:

Internal point of view: members of the group who “accept” the rule—that is, regard the rule as reason for their action;

External point of view: reports on the internal point of view without sharing the same beliefs and attitudes that members of the group do;

Extreme external point of view: which only reports on the rules in terms of observable regularities of behaviour. This view represents Austin´s simplistic reductionism that does not recognize the crucial distinction between conformity to a regularity of behaviour and instances of following a rule (53).

Chicken-egg Problem: Hart claims that we identify judges and officials in virtue of social rules. But how can those same rules constitute the role of such people as judges and officials? So it seems that we need some legal rules to explain who counts as “an official,” but then we say that what counts as law is determined by the rules that those officials follow (56).

Marmor: There is no circularity: the rules followed by those who play a particular institutional role can be the same rules that constitute the institutional role that forms part of an activity generally constituted by rules just as in a game like Chess. This difficulty however revels another problem (56): Hart’s practice theory of rules seemed to provide only an account of what one would observe when a population follows a rule, namely, that people exhibit a regularity of behaviour accompanied by some beliefs and attitudes they share about that regularity. But this account tells us nothing about the reasons people might have for following rules (57). Why, some commentators have asked, should judges and other legal officials be bound by the rules of recognition; what makes them obligatory in any sense (58)? But for Hart this is the limit of an account of the nature of law. It can only point out that law has this normative element, and that wherever there is a functioning legal system in place, most members of the relevant population regard the requirements of law as binding (as giving them reasons for action and reasons for exerting pressure on other members to comply as well). Whether these reasons are moral reasons, and whether they are adequate to the task, are not questions that need to be answered within a general theory of jurisprudence. So what we need is the introduction of a conception of legitimate authority (58).

TAREA:

Leer con atención el texto de Diaz y Diaz

https://www.dropbox.com/s/n8dfi4kfhz1h4ka/DiazDiazConstitucionTensiones.pdf?dl=0

Pregunta de reflexion: ¿Por qué la constitución del 17 puede ser vulnerable a la corrupción?