Published online by Cambridge University Press: 09 June 2015
The proper jurisdiction of lawful authority has always been a central issue in Anglo-American jurisprudence. English and American legal institutions both grew out of a seventeenth-century British culture that valued liberty, and sought to defend it legally by carefully defining the scope and purpose of lawful authority. Yet after 1776 the two nations diverged. This paper will evaluate English conceptions of legal authority from an American perspective. My thesis is that English lawyers discuss the authority of law in language developed to counter seventeenth- and eighteenth-century European revolutionary thought. British reactions to the English, American and French Republics preserved Hobbesian conceptions of legal authority that still influence common-law jurisprudence today, and mislead English-speaking lawyers who have adopted British terminology. I will suggest a more precise vocabulary, and use it to criticise certain positivist conceptions of the authority of law.
I would like to thank Thomas Kennedy for his research assistance and the National Endowment for the Humanities for its generous financial support of this project.
1. Most scholars now presume republican government requires representative democracy.See, e.g., Sellers, , “Republican Impartiality” (1991) 11 Oxford J. of Legal Studies 273;Google Scholar Publius, (James Madison), The Federalist No. 10 (1787) in Cooke, J.E., ed., The Federalist (Middletown, Conn.: Wesleyan University Press, 1961) 62. Cf. infra, note 6. This presumption is not part of my argument for republican authority.Google Scholar
2. People often assume that rights imply duties, e.g. Brandt, Richard, Ethical Theory (Englewood Cliffs, N.J.: Prentice-Hall, 1959) at 438 Google Scholar; but rights need not, sometimes should not, and often do not simply duties in a just legal system. Hohfeld, W.N., “Some Fundamental Legal Conceptions as Applied in Judicial Reasoning” (1913) 23 Yale L.J. 16 at 28–45 Google Scholar. Cf. Ladenson, Robert, “In Defense of a Hobbesian Conception of Law” (1980) 9 Phil. & Pub. Affairs 134 at 137–39.Google Scholar
3. The early history and origins of American republicanism have a vastrecent bibliography. See, e.g., Robbins, Caroline, The Eighteenth-Century Commonwealthman (Cambridge, Mass.: Harvard University Press, 1961)Google Scholar; Bailyn, Bernard, The Ideological Origins of the American Revolution (Cambridge, Mass.: Harvard University Press, 1967)Google Scholar; Wood, Gordon S., The Creation of the American Republic, 1776–1787 (Chapel Hill: University of North Carolina Press, 1969)Google Scholar; Pocock, J.G.A.,The Machiavellian Moment (Princeton: Princeton University Press, 1975);Google Scholar Kramnick, Isaac, Republicanism and Bourgeois Radicalism (Ithaca: Cornell UniversityPress, 1990)Google Scholar. American lawyers have been interested inthe Constitutional requirements of republican government, which is guaranteed to every state in the union by Article IV, Section 4 of the United States Constitution. Blackstone, infra, note 46 at IV.4. Cf., e.g., Wiecek, William, The Guarantee Clause of the U.S. Constitution (Ithaca: Cornell University Press, 1972)Google Scholar; Sunstein, Cass, “Interest Groups in American Public Law” (1985) 38 Stanford L. R. 29CrossRefGoogle Scholar; Sherry, Suzanna, “Civic Virtue and the Feminine Voice in Constitutional Adjudication” (1986) 72 Virginia L.R. 543;CrossRefGoogle Scholar Michelman, Frank, “Law’s Republic” (1988) 97 Yale L.J. 1493.CrossRefGoogle Scholar
4. By advocating precision in the language of jurisprudence, I do not mean to imply that precision is always possible or desirable in the law. One great weakness in Anglo-American jurisprudence has been an excessive desire for “clarity”, even at the expense of justice. See, e.g., Hart, H.L.A., “Positivism and the Separation of Law and Morals”, in Hart, H.L.A., Essays in Jurisprudence and Philosophy (Oxford: Oxford University Press, 1983) 49 CrossRefGoogle Scholar. Common-law judges often seek to legislate as to future disputes while deciding cases in the interstices of existing positive law. Hart, “American Jurisprudence Through English Eyes” in ibid. 123 at 128. This limits the discretion of subsequent decision-makers, which may not always be desirable. The law may become too precise to be just. Some truths may not be expressible as rules.
5. On republics in this sense, see Sellers, supra, note 1; Algernon Sidney, Discourses Concerning Government (London: J. Toland, 1698); Cicero, De Re Publico. The Greek “Πολιτἰα” has a somewhat different meaning.
6. “Respublica est res populi. Populus autem non omnis coetus multitudinis, sed coetus juris consensu, et utilitatis communione sociatus.” Marcus Tuliius Cicero, / de re Publico xxv. 39, as paraphrased by Adams, John, Defence of the Constitutions of the United States, vol. 1 (London: C. Dilly, 1787) at xxiGoogle Scholar. The word “republic” can apply to any form of government that serves justice and the common good: “Republica res est populi, cum bene ac juste geritur, sive ab uno rege, sive a paucis optimatibus, sive ab universo populo.”Cicero, ibid.. (Frag.) as quoted by Adams, ibid, at xxi. Cf. Paine, Thomas, “The Rights of Man” (1792) in Conway, M.D., ed., The Writings of Thomas Paine, vol. 1 (New York: A.M.S. Press, 1967) at 421–22Google Scholar: “What is called a republic is not any particular form of government. It iswholly characteristical of the purport, matter or object for which government ought to be instituted,and on which it is employed, Res-publica, the public affairs, or the public good....Every government that does not act on the principle of a Republic, or in other words, that does not make the res-publica its whole or sole object, is not good government…[Republican government] is not necessarily connected with any particular form but it most naturally associates with the representative form [of government]....” Cf. Austin, infra, note 50 at VI.225, note 19.
7. “In these westerne parts of the world, we are made to receive our opinions concerning the Institution, and Rights of Common-wealths, from Aristotle, Cicero, and other men, Greeks and Romanes…and other Writers have grounded their Civill doctrine, on the opinions of the Romans.... And by reading of these Greek, and Latine Authors, men from their childhood have gotten a habit (under a false shew of Liberty,) of favouring tumults, and of licentious controlling the actions of their Soveraigns; and again of controlling those controllers, with the effusion of so much blood; as I think I may truly say, there was never anything so deerly bought, as these Western parts have bought the learning of the Greek and Latine tongues.” Hobbes, Thomas, Leviathan (London: A. Crooke, 1651), bk. II, c. XXI at 110–11.Google Scholar
8. Ibid. bk. I, c. VI at 24.
9. Ibid. bk. I, c. XIII at 63.
10. “[I]f the essentiall Rights of Sovereignty…be taken away, the Common-wealth is thereby dissolved, and every man returneth into the condition and calamityof a warre with every other man, (which is the greatest evill that can happen in this life)”. Ibid. bk. II, c. XXX at 175.
11. Ibid. bk. II, c. XVIII at 90.
12. Ibid. bk. II, c. XVIII at 93.
13. Ibid. bk. II, c. XXVI at 137.
14. Cf. supra, note 10.
15. “The Office of the Soveraign, (be it a Monarch, or an Assembly,) consisteth in the end, for which he was trusted with the Soveraign Power, namely the procuration of the safely of the people; to which . he is obliged by the Law of Nature, and to render an account thereof to God, the Author of that Law, and to none but him.” Ibid. bk. II,c. XXX at 175.
16. “CIVILL LAW, Is to every Subject, those Rules, which the Common-wealth hath Commanded him, by Word, Writing, or other sufficient Sign of the Will, to make use of, for the Distinction of Right, and Wrong; that is to say, of what is contrary, and what is not contrary to the Rule.” Ibid. bk. II, c. XXVI at 137.
17. Ladenson, supra, note 2 at 142–45.
18. “There is a Sixth doctrine, plainly, and directly against the essence of a Common-wealth; and ‘tis this, That the Soveraign Power may be divided. For what is it to divide the Power of a Common-wealth, but to Dissolve it; for Powers divided mutually destroy each other.” Hobbes, supra, note 7, bk. II, c. XXIX at 170.
20. Ibid at at 304.
21. American courts do “something very different from what conventional legal thought in all countries conceives as the standard judicial function: the impartial application of determinate existing rules of law in the settlement of disputes.”H.L.A. Hart, “American Jurisprudence Through English Eyes”in Hart supra, note 4 at 125.
22. See, e.g., Justice Black’s concurring opinion in Rochin v. California, (1952) 342 U.S. 165 and his dissent in Griswoldv. Connecticut, (1965) 381 U.S. 479.
23. Adams, supra, note 6, vol. 1.
24. Adams, ibid, vol. I at 126, slightly misquoting Harrington, James, “The Commonwealth of Oceana” (1656) in Pocock, J.G.A., ed., The Political Works of James Harrington (Cambridge: Cambridge University Press, 1977) 155 at 161.Google Scholar
25. Ibid., vol 1 at 161.
28. Ibid. vol. 1 at 165.
29. Ibid. vol. l at 161.
30. United Slates Constitution, Preamble.
31. Adams, supra, note 6, vol. 1 at xviii.
32. Ibid. vol. 1 at 129.
33. Ibid. vol. 1 at 182; Cf. Publius (J. Madison), Federalist No. 51 in Cooke, supra, note 1 at 349.
34. Ibid. vol. 1 at xxi–xxii, quoting Cicero, de re Publico (Frag.): “Respublica res est populi; cum bene ac juste geritur…cum vero…injustus ipse populus, cui nomen usitatum nullum reperio, nisi ut etiam ipsum tyrannum appellem; non jam vitiosa, sed omnino nulla respublica est, quoniam non est res populi, cum tyrannus earn factiove capessat; nee ipse populus est si sit injustus, quoniam non est multitudinis juris consenu, et utilitatis union sociata.”
35. Ibid. vol. 1 at 123.
36. Ibid. vol. III at 210–11.
37. Ibid. vol. III. at 211.
38. Ibid. vol. 1. at 325–26.
39. Ibid. vol. III at 282, quoting Cicero, II. Philippicae 28: “Lex nihil est nisi recta, et a numine Deorum tracta ratio, imperans honesta, prohibens contraria”.
40. Ibid. vol. III. at 365, quoting Cicero.
41. Ibid. vol. I. at 131, quoting Montesquieu.
42. Ibid. vol. I. at 177.
43. Cf. Bentham, Jeremy, the other architect of English legal positivism, and his Answer To The Declaration Of The American Congress (London: 1776)Google Scholar, as discussed by H.L.A. Hart, “1776-1976: Law in the Perspective of Philosophy” in Hart, supra, note 4, 145.
45. Ibid, at 14.
46. Blackstone, William, Commentaries On The Laws Of England, vol. 1 (Oxford: Clarendon Press, 1765) at 42 Google Scholar(Introd., 2); Cf. Ibid. vol. 1 at 41: “This law of nature being co-eval with mankind, and dictated by God himself, is of course superior in obligation to any other. It is binding over all the globe in all countries, and at all times: no human laws are of any validity, if contrary to this; and such of them as are valid derive all their force, and all their authority, mediately or immediately, from this original.”
47. Ibid. vol. 1. at 54 (Introd., 2).
48. “On the other hand, over-zealous republicans, feeling the absurdity of unlimited passive obedience, have fancifully (or sometimes factiously) gone over to the other extreme: and, because resistance is justificable to the person of the prince when the being of the state is endangered, and the public voice proclaims such resistance necessary, they have therefore allowed to every individual the right ofdetermining this expedience, and of employing private force to resist even private oppression. A doctrine productive of anarchy, and (in consequence) equally fatal to civil liberty as tyranny itself.” Ibid. vol. 1 at 244 (Bk. I, c. 7). The legislature “acknowledges no superior upon earth”, Ibid. vol. 1 at 70 (Introd., 3), and no one should disobey the sovereign authorities unless “the contracts of society are in danger of dissolution, and the law proves too weak a defence against the violence of fraud or oppression”. Only then can “recourses to first principles” be justified. Ibid.
49. Ibid. vol. 1 at 243 (bk. I, c. 7).
50. Austin, John, The Province of Jurisprudence Determined, ed. by Hart, H.L.A., (New York: Humanities Press, 1954) at 185 (first published in 1832).Google Scholar
51. Ibid. at 186. Austin used the word “utility” because like Hobbes he believed “moral sense” and “conscience” merely to be “convenient cloaks for ignorance or sinister interest”. Ibid.
52. “The existence of law is one thing; its merit or demerit isanother. Whether it be or be not is one enquiry; whether it be or be not conformable to an assumed standard, is a different enquiry. A law, which actually exists, is a law, though we happen to dislike it, or though it vary from the text, by which we regulate our approbation and disapprobation.”Ibid, at 184.
53. “To prove by pertinent reasons that a law is pernicious is highly useful, because such process may lead to the abrogation of the pernicious law…But to proclaim generally that all laws which are pernicious or contrary to the will of God are void and not to be tolerated, is to preach anarchy, hostile and perilous as much to wise and benign rule as to stupid and galling tyranny.” Ibid, at 186.
54. Ibid, at 9.
55. Ibid, at 13 “A command is distinguished from other significations of desire, not by the style in which the desire is signified, but by the power and the purpose of the party commanding to inflict an evil or pain in case the desire be disregarded.” Ibid, at 14.
56. Ibid, at 19.
57. Ibid, at 24.
59. Ibid, at 192.
60. Ibid, at 193. “To th[eir] determinate superior, the other members of society are subject.... The mutual relation which subsists between…them,may be styled “no government [can be] sovereign and subject at once…[and] no government can be styled with propriety half or imperfectly supreme.” Ibid, at 241
61. Ibid, at 254.
62. Ibid, at 271.
63. Ibid. at 272.
64. Ibid, at 273.
65. Ibid, at 274. Fear of presumptuous incapacity led Austin to endorse Hobbes’ defense of despotism: “the soveraign power…is as great as men can be imagined to make it. And though of so unlimited a power men may fancy many evill consequences, yet the consequence of the want of it, which is warre of every man against his neighbour, is much worse. The condition of man in this life shall never be without inconveniences: but there happeneth in no commonwealth any great inconvenience, but what proceeds from the subjects’ disobedience. And whosoever, thinking sovereign power too great, will seek to make it lesse, must subject himselfe to a power which can limit it: that is to say, to a greater.” Hobbes, supra, note 7, bk. II., c. XX at 106-107, quoted in Austin, supra, note 50 at 275. One opinion most “repugnant to the nature of a commonwealth, is this: that he who hath the sovereign power is subject to the civill lawes....But to the civill lawes, or to the lawes which the sovereign maketh, the soveraign is notsubject…[Whosoever) setteth the civill lawes above the sovereign, setteth also a judge above him, and a power to punish him: which is to make a new sovereign; and, again, for the same reason, a third to punish the second; and so continually without end, to the confusion and dissolution of the commonwealth.” Hobbes, supra, note 7, bk. II., c. XXIX at 169, quoted in Austin, supra, note 50 at 275–76.
66. Ibid, at 278.
67. “[A]gainst a monarch properly so called, or against a sovereign body in its collegiate and sovereign capacity, constitutional law is positive morality merely, or is enforced merely by moral sanctions....Consequently, although an act of the sovereign which violates constitutional law, may be styled with propriety unconstitutional, it is not an infringement of law simply and strictly so called, and cannot be styled with propriety illegal.” Ibid, at 259. Cf. quotation from Austin contained in footnote 52 above.
68. Ibid, at 186.
69. Ibid, at 10.
70. Cf. Raz, Joseph, “Authority and Justification” (1985) 14 Phil. & Pub. Affairs 3 at 15 Google Scholar: “The whole point and purpose of authorities&is to preempt individual judgment on the merits.”
71. Blackstone, supra, note 46, vol. 1 at 69 (Introd., 3).
72. Which is to say that judges take common law precedents seriously, and are inclined to accept the reasoning of precedents, unless they have a strong reason not to.
73. The mistake originated with Hobbes, who disdained classical learning. See Hobbes, supra, note 7. The Romans made a clear distinction between aucloritas (authority) which belonged to the best and wisest men, and potestas (power) or imperium (sovereignty), which belonged to the people, at least in a republic. Thus D. Brutus: “did well by the republic in defending the authority (auctoritas) of the Senate and the liberty and sovereignty (imperium) of the Roman people” M. Tullius Cicero, Philippicae, III, xv at 37. Cf. ibid., IV, iv at 8: “decrevit senatus D. Brutum optime de re publica mereri, cumsenatus auctoritatem populique Romani libertatem imperiumque defenderet.”
74. “English” for the purposes of this paper in virtue of his position, attitude and education rather than by birth or inclination.
75. Raz calls this “The Normal Justification Thesis” . See Raz, Joseph, The Morality of Freedom (Oxford: Clarendon Press, 1986) at 53;Google Scholar cf. Raz, supra, note 19 at 299.
76. Raz, supra, note 19 at 300.
78. Ibid, at 303.
79. Ibid, at 304.
81. Ibid, at 310.
82. Ibid, at 315.
83. Ibid, at 315–16.
84. Ibid, at 318
85. Ibid, at 321.
86. Some, including Hart, have sought to modify the command theory, while clinging to the old separation of law from morality. H.L.A. Hart, “Positivism and the Separation of Law and Morals” in Hart, supra, note 4 at 57–62.
87. “And as for the moral sense, innate practical principles, conscience, they are merely convenient cloaks for ignorance or sinister interest”. Austin, supra, note 50 at 186. Cf. supra, note 51, and accompanying text.
88. “The good of mankind, is the aggregate of the pleasures which are respectively enjoyed by the individuals who constitute the human race.” Ibid, at 105
89. Supra, note 75 at 93–94; cf. Blackstone, supra, note 46, vol. 1 at 70.
90. Austin, supra, note 50 at 186.
91. Seeinfra, notes 105–108, and accompanyingtext.
92. Declaration by the Representative of the United States of America, in general congress assembled (Philadelphia, July 4, 1776).
93. Constitution of the United States Preamble (September 17, 1787).
94. See, e.g., Raz,supra, note 19 at 319; Hart, “American Jurisprudence”, supra, note 3 at 141.
95. See Blackstone, supra, note 71 and accompanying text.
96. See supra, notes 5–6 and accompanying text.
97. Raz argues that “the fact that an authority requires performance of an action is a reason for its performance which is not to he added to all other relevant reasons when assessing what to do, but should exclude and take the place of some of them.” (italics in original) Raz calls this the Pre-emptive Thesis, supra, note 75 at 46. This is because “all authoritative directives should be based on reasons which already independently apply to the subjects of the directives and are relevant to their action in the circumstances covered by the directive.” Raz calls this the Dependence Thesis in ibid, at 47’48. “An authority is justified [i.e., legitimate]…if it is more likely than its subjects to act correctly for the right reasons.” Ibid, at 61.
98. Ibid, at 62. Cf. Raz, supra, note 70 at 26.
99. Raz, supra, note 75 at 70. See also Raz, “The Obligation to Obey, the Law”, in Raz, , The Authority of Law (Oxford: Oxford University Press, 1979) at 233–49.Google Scholar
100. Raz, supra, note 75 at 73.
101. Ibid, at 74.
102. Ibid, at 78.
103. Ibid, at 102.
104. Ibid, at 158.
105. Ibid, at 133. Cf. ibid, at 142: “[O]ne does not wish one’s desire satisfied if one’s reason for the desire is mistaken even if one continues, through ignorance, to entertain the desire. One does not wish merely not to have mistaken desires; one also does not wish to have them satisfied.” See also ibid, at 159: “While an authority’s belief that a decision is based on sound considerations makes it binding even if it is not in fact sound, the reason for this is that acknowledging the validity of an authority’s decision even if it is unsound is in fact more likely to lead to action supported by sound reason than any alternative method of deciding what to do.”
106. As Joseph Raz recognizes, ibid, at 158.
107. See, e.g., Adams,supra, note 6 passim; “Publius” in Cooke, supra, note 1 passim.
108. E.g., Raz, supra, note 75 at 170.
109. Cf. Ladenson, supra, note 2 at 137–39.
110. Hohfeld, supra, note 2 at 36, citing Quinn v. Leathern,  A.C. 495 at 534.
111. Cf. Ladenson, supra, note 2 at 137–38. Republican authorities have what Ladenson calls a “justificationright”. As contrasted with “claim-rights”, justification rights imply no obligations.
112. See, e.g., Raz, supra, note 70 at 5. Legal authorities claim “a right to rule, which implies an obligation to obey....They have legitimate authority only if and to the extent that their claim is justified and they are owed a duty of obedience.” Cf. Raz, supra, note 2 at 26.
113. Hobbes and Austin’s theories of sovereign authority survive in the unchecked powers of the British parliament, but few contemporary English lawyers share the old fear of democracy. H.L.A. Hart is prominent among those who have recognized and advocated substantive legal limitations on the exercise of sovereign power, Hart, H.L.A., The Concept of Law (Oxford: Oxford University Press, 1961) at 144–50Google Scholar. But Hart, like many other contemporary positivists, continues to assert that what the law is can and should be sharply distinguished from what the law ought to be. Hart, supra, note 4 at 57–62.