English Analytical Positivism

4 English Analytical Positivism 4.1 Introduction This chapter identifies that part of legal theory which is known as analytical positivism, and considers the work of two of its leading English exponents, namely Austin and Hart. More particularly, it will show how the work of the latter remedies certain deficiencies in the work of the former. The tradition of English analytical positivism may be traced back to the work of Jeremy Bentham (1748–1832). Although some of Bentham’s work was published in his lifetime, the manuscript of his major work on legal theory was overlooked for more than a century, with its first publication occurring as late as 1945, under the title The Limits of Jurisprudence Defined, before appearing in definitive form in 1970 as Of Laws in General. There was, however, no such delay in the publication of the work of his follower, John Austin (1790–1852). In 1826 Austin became the first Professor of Jurisprudence in the newly founded University of London, which subsequently became University College, London. (Before this time, access to university education was restricted to members of the Church of England, and University College was founded specifically to widen access to university education for people of other – or no – religious persuasions. This objective, together with the fact that it was – and indeed still is – based in Gower Street, not only explains why members of the college are commonly called ‘the godless of Gower Street’, but also made it a peculiarly appropriate environment for a positivist professor of law.) Austin’s work, The Province of Jurisprudence Determined, which consisted of the text of six lectures which he had delivered in the college, was first published in 1832, but his version of what is known as the command theory of law continued to dominate the English teaching of jurisprudence well into the 20th century. 4.2 Austin’s Command Theory of Law Introduction As the title of his lectures (The Province of Jurisprudence Determined) indicates, Austin is concerned to identify the limits of the subject of jurisprudence. This necessarily involves eliminating a great deal of material which may in one way or another be said to be law, without being law for the present purposes. Austin begins with an unequivocal statement of his positivist position: ‘The matter of jurisprudence is positive law: law, simply and strictly so called: or law set by political superiors to political inferiors.’ (The Province of Jurisprudence Determined, 1832, p. 9.) Further refinements are then introduced. First, the political superior must be a sovereign: ‘If a determinate human superior, not in the habit of obedience to a like superior, receive habitual obedience from the bulk of a given society, that determinate superior is sovereign in that society, and the society (including the superior) is a society political and independent.’ (Op. cit., p. 194.) The next stage is to explain the concept of command, which may be either ‘direct or circuitous’. (Op. cit., p. 134): ‘The ideas or notions comprehended by the term command are the following. (1) A wish or desire conceived by a rational being, that another rational being shall do or forebear. (2) An evil to proceed from the former, and to be incurred by the latter, in case the latter not comply with the wish. (3) An expression or intimation of the wish by words or other signs.’ (Op. cit., p. 17.) It will be apparent that, for these purposes, the idea of a sanction (i.e. the evil which is imposed in the event of non-compliance with the command) is inextricably involved in the idea of the command itself. Finally, the status of law is reserved for a command which ‘obliges generally to acts or forbearances of a class’. (Emphasis added.) In summary, therefore, Austin’s version of law requires a command which is both express and general, which is issued from a sovereign to a subject, and non-compliance with which results in the sovereign imposing a sanction on the subject. We must now consider each of these elements in more detail. The nature of the command The requirement that the command must be express may seem obvious enough, and is reflected in Lord Diplock’s dictum that ‘Parliament, under our constitution, is sovereign only in respect of what it expresses by the words used in the legislation it has passed’. (Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenberg AG [1975] 1 All ER 810.) Nevertheless, in practice it is by no means certain that Parliament has always expressed that which the courts hold to be the law, since interpretation will always be necessary, at which point factors other than the plain words of the statute (for example, the court’s perception of the statutory purpose, or of judicial policy) may come into play. The case of Kammins Ballrooms Co Ltd v Zenith Investments Ltd [1970] 2 All ER 871 provides a classic modern example of the way in which the purposive approach to interpretation may radically affect the meaning of an apparently clear, express legislative text. The facts arose under the scheme of security of tenure for business premises contained in Part II of the Landlord and Tenant Act 1954. Briefly, the statutory scheme requires that a tenant who wishes to retain the tenancy of premises on the expiry of the existing tenancy should ask the landlord to grant him a new one. If the landlord refuses to comply, the tenant can then apply to the court, where the matter will be resolved. In the context of this procedure, s. 29(3) of the Act provides that ‘no application... shall be entertained unless it is made not less than two nor more than four months after... the making of the tenant’s request for a new tenancy’. In Kammins the tenant’s application to the court was made outside the statutory period, but the House of Lords held that this did not necessarily invalidate it. Lord Diplock acknowledged that: ‘Semantics and the rules of syntax alone could never justify the conclusion that the words “No application... shall be entertained unless” meant that some applications should be entertained notwithstanding that neither of the conditions which follow the word “unless” was fulfilled.’ (Original emphasis.) Nevertheless, Lord Diplock pointed out that the purpose of the Act was to persuade landlords and tenants to proceed by agreement wherever possible, and that the time limit in question had been enacted for the protection of landlords. It followed that landlords should be allowed to waive compliance with the time limit if they so wished. (The fact that, in all the circumstances of the case, this particular landlord was held not to have waived compliance is irrelevant to the principle of interpretation.) It will be readily apparent that the law, as formulated by the House of Lords, did not rely on the express words contained in the statutory command. The decision of the House of Lords in Jones v Secretary of State for Social Services [1972] 1 All ER 145 provides an example of the court’s perception of judicial policy (in this case, in relation to the operation of the doctrine of binding precedent) being crucial to the outcome. The case was decided under a scheme of industrial injuries legislation which provided that claims for long-term benefit were determined in two stages and by two different tribunals. In the first place the question was whether an injury had been caused by an accident arising out of employment. If this question were answered in the affirmative, the second stage was to decide the extent of the disablement, and therefore the amount of benefit payable. The legislation stated that the answer to the first question was to be ‘final’. In Re Dowling [1967] AC 725, the House of Lords had held that the tribunal determining the second question could not re-open consideration of the first question. In Jones, on legislation which was substantially the same as that which was before the court in Dowling, the majority of a seven-member House of Lords decided to follow the earlier case. The relevance of the case in the present context is that even though four Law Lords held that, as a matter of statutory interpretation, Dowling had been wrongly decided, only three were willing to exercise their discretion to depart from that decision. Several reasons were given for the willingness to follow a case which had been wrongly decided, thereby consolidating the error, but for the present purposes the point is simply that the command (i.e. the relevant statutory provisions) required to be interpreted, and that different judges not only produced different interpretations, but also had different opinions about the effect of those interpretations on the final outcome of the case. Once it is accepted that cases such as these show that in reality the courts may treat a statute, albeit one enacted by a legislatively supreme Parliament, as no more than a starting point when identifying and applying the law, the proposition that the express command of a sovereign is an essential element in law must be open to serious doubt. Austin’s requirement that a command must be general before it qualifies as a law may be thought to neglect the facts of legal life, because in practice all sorts of individualized commands clearly have legal effect. For example, orders of a court restraining a defendant from continuing to commit a trespass, or prohibiting the republication of a libel, are both clearly commands, backed by the sanction of imprisonment for contempt of court in the event of breach, and yet they are equally clearly individualized in the sense of being addressed to specific defendants. However, Austin would regard these as being merely applications of law to particular cases, rather than being law strictly so-called, and on this basis they provide no challenge to his theory. The nature of the sovereign The requirement that the sovereign must be human clearly excludes divine law from Austin’s area of inquiry, but it would be unfair even for natural lawyers to lay this exclusion specifically at Austin’s door by way of criticism, since it is a matter which is common to positivist theories generally.