¹ The Concept of Law, by Hart, H. L. A., Professor of Jurisprudence in the University of Oxford, 1961Google Scholar; The Idea of Law, by Lloyd, Dennis, Quain Professor of Jurisprudence at University College, London, 1964Google Scholar; The Morality of Law, by Fuller, Lon L., Carter Professor of General Jurisprudence at the Harvard Law School, 1964.Google Scholar

² Op. cit. supra.

³ Op. cit. supra, p. 1. The quotations are from the works of Llewellyn, O. W. Holmes, J. C. Gray, Austin and Kelsen, in that order.

⁴ Thus it may be that most writers would agree on when a particular state of affairs or of society was characterised by the presence of law, while indicating slightly different elements comprised in that structure as constituting it. So that in asserting the presence of law they would be saying different things about the society in which its presence was asserted. This difference would of course give a different slant to each writer's Jurisprudence, resulting as it would in the selection of different elements and relations in the society as significant and important for the student's understanding. Thus an identification of law in terms of rules may lead to a greater emphasis on logic; an identification in terms of social inter-action may lay a greater emphasis on human need.

⁵ They may of course be purporting merely to give the sole ordinary meaning, or the characteristic use, of the word ‘law.’ But this is not strictly relevant to the question whether their statements are analytic or synthetic in the sense here discussed, though relevant to the question whether they are a priori or empirical as purporting to express linguistic usage.

⁶ This is a common form of linguistic confusion, noted by Hegel, who saw that most disputes about God, Spirit, Nature, etc.—and he might have added Law—are, to begin with verbal, “since what such things are becomes for the first time plain in what we say of them” [ Hegel, A Re-examination, by Findlay, J. N., 1958, p. 231Google Scholar]. And see Austin, J. L., “How to Talk” in Philosophical Papers, 1961, p. 181.Google Scholar

⁷ A LAW-concept, or any expression in the form ‘Law is X’ guides behaviour with the help of the presupposition that LAW is in some sense “obligatory,” something which must be obeyed, enacted, or applied. So that if LAW is X it follows that X is obligatory, whether X represents divine command, natural reason, custom, sovereign command, or what have you.

⁸ This guidance will be all the more effective if it appears to appeal to cognition rather than to volition, if it asserts a fact rather than makes a prescription, if it proclaims what law is in its true nature rather than suggests what the law ought to be.

⁹ These approved paths will characteristically entail respect for the validity of specified sources, such as divine revelation, custom, reason, sovereign will, national spirit, judicial wisdom and experience.

¹⁰ A LAW-IDEA may be said to indicate the validity of LAW and to express its criteria. Since it appears to appeal directly to cognition rather than to volition (see note 8, supra) a LAW-IDEA must be distinguished from a LAW-IDEAL. LAW-IDEAS, nevertheless, cannot as such be strictly true or false—only operative or inoperative. But the statement that a certain LAW-IDEA, or law-IDEA, is operative may, of course, be true or false.

¹¹ Op. cit., p. 203.

¹² Both Professor Hart and Professor Fuller show by their analyses, however, that even the most formal LAW-concept may offer far more guidance to judges than might be imagined—not indeed as to the decisions to be reached, but as to the form or way in which they must be reached (e.g., impartially, on the basis of a general rule, etc.). Even Holmes’ LAW-concept in terms of predictions of judicial behaviour implies that completely unpredictable behaviour in decision making is not adjudication. Thus his LAW embodies the values of stability and order, not mere arbitrary force.

¹³ Cf. Hart, op. cit., p. 1, who regards this passion as academic rather than political.

¹⁴ In the Jurisprudence of both Professor Hart and the writer the terms ‘law’ and ‘legal system,’ as expressing the basic LAW-concept, are generally interchangeable. But whereas Professor Hart's LAW-concept denotes a system of prescriptions operative in action, the writer's LAW-concept denotes a system of social inter-action proceeding in accordance with and including such a system of prescriptions. Professor Hart calls his system of prescriptions ‘legal rules,’ while the writer calls them ‘legal norms.’ Both agree that a system of operative legal prescriptions are necessary elements in law or legal systems. There are differences, however, in the way that legal prescriptions are analysed. And of course the writer's LAW-concept embraces a whole target area of which Professor Hart's hits only the centre. For a fuller comparison see the writer's article “The Basic Concept of Professor Hart's Jurisprudence” [1963] C.L.J. 270. The writer's basic concept has the special function of displaying the coherence of the lawyer's specific experience, and its relevance to his various roles in society. Briefly he defines law or a legal system as a state of affairs or of society, patterned by the predictable sanction—authorising reactions to situations of a court or system of courts. This calls for a preliminary analysis of society and of the sociological setting of law.

¹⁵ The social utility of a naturalist law-IDEA would seem to be dependent on the proper role in a particular society of the supreme legislative organ. Should its decrees be permanently subject to judicial review as contrary to legally unalterable law? For the essence of a naturalistic law-IDEA is that it cannot finally be shaken by any method known to the positivist lawyer. Once adopted it must continue to operate until abandoned by the court adopting it—or the disappearance of the court.

¹⁶ This is indeed customary, but only at the cost of misunderstanding the literature, i.e., by presupposing the critic's LAW-concept and assuming that the literature consists of inadequate or false theories of the critic's LAW whenever there is a lack of correspondence between the critic's LAW and the LAW-concept of the writer being assessed.

¹⁷ Op. cit. supra, note 14.

¹⁸ More accurately it is the inconvenience of concepts expressed in terms of morality that he points out, but he does not draw attention to the theoretical difference between the considerations involved when they are functioning as LAW-concepts so as to delimit a basic subject-matter and when as LAW-IDEA so as to decide on the validity of formally valid legislation. Thus he misses the vital point that a LAW-IDEA expressed in terms morality might, and sometimes does, function quite happily in a positivistically conceived legal system, provided that there is no swapping of horses and retroactive application, as there was in Germany, on a change of régime. This may be the case in Austria and the U.S.A. On the other hand LAW conceived in terms of morality can find no place for a positivist or morally neutral LAW-IDEA. For in this case an immoral “law” would be not merely, as in the former case, invalid within the system, but a contradiction in terms throughout the writer's Jurisprudence. In other words LAW defined “without reference to goodness or badness” can accommodate a LAW-IDEA defined in terms of morality. LAW defined in moral terms can accommodate no other. And this would be a theoretical nuisance.

¹⁹ See note 3, supra.

²⁰ Professor Hart demonstrates that Austin's LAW-concept cannot account for the persistence of LAW through changes in the holder of supreme LAW making power. He establishes a LAW-concept which can so account. Professor Fuller sees no need to account for this persistence of LAW. Because it presents no practical problem he cannot see why it should present a theoretical one (p. 149).

^20a Perhaps one should cease to speak of the Rule of Law and speak instead of the Rule of the Western LAW-IDEA. By Western is here meant Graeco-European, i.e., not Byzantine or imperative.

²¹ Max Weber on Law in Economy and Society, edited with introduction by Max Rheinstein. 20th Century Legal Philosophy Series: Vol. VI, p. xxxix.

²² Weber, Max, op. cit. supra, p. 1.Google Scholar To say that Professor Hart's concept of LAW as a system of rules within rules lends itself to a conceptualist Jurisprudence is to say that it tends to suggest the logical elaboration of static concepts as an appropriate mode of developing the law. The writer's concept of LAW as a system of inter-action centering on predictable court reactions may more naturally lend itself to the notion of developing the law by precedent and analogy, so as to incorporate known current values. Elements of both modes of development are of course necessary, to meet the needs of stability and change.

²³ Hart, op. cit., p. 189.

²⁴ Ibid. p. 202.

²⁵ Ibid. 157.

²⁶ Report of the Committee on Homosexual Offences and Prostitution (Cmd, 247, 1951).

²⁷ These prophecies are expressed in the logical form “if situation X then probably sanction Y.” The rule of law stated is constituted by the probability asserted, so that its ontological status resembles that of the observed uniformities which constitute the laws of physics. The assertion of probabilities is justified by the character of courts and by the existence of accepted norms which may be expressed in the form “if situation X then the courts ought to authorise sanction Y.

²⁸ Oakeshott, Rationalism in Politics, 1962, p. 123.

²⁹ Unless of course a new legal system is being imposed on a society by superior might.

³⁰ A Jurisprudence of research may well culminate in the establishment of a LAW-concept. But of what avail is this if the LAW-concept be not then used as the starting point of a Jurisprudence of exposition? A useful LAW-concept is by no means, as Stone appears to think, at best a list of elements, essentially “mnemonics for clarification,” a “kind of index” to LAW (Legal System and Lawyers’ Reasonings, 1964, pp. 184–185Google Scholar). Nor is it “a frame… into which each legal system is to be forced” (p. 138). It is at once a tool for the analysis of social reality: a map displaying the internal structure of LAW—showing how what Stone calls the “somehow unified entity” (p. 185) LAW is in fact unified: and a springboard for the exploration of the external relations of LEGAL systems.