From Theoretical Foundations to Scientific Realities: Rethinking Jurisprudence's Empirical Disconnect.

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Kelsen in the ‘Pure Theory of Law’ [1934] asserts that Hart and Austin are Legal Positivist (‘LP’) thinkers with inherent sociological sentiments. They believe there are consequences for normative deviation from subservience to the ‘Leviathan ‘and adherence to the rule of recognition (‘ROR’); their explanation of obligation to do something is rooted in desire – the sociological sentiment. In light of their theories dabbling in socio-anthropological inclusion, this essay will discuss the extent their empirical claims as to the perquisites for social stability and dispute settlement are far removed from socio-anthropological studies. It will contend that Hart, Austin, and Hobbes do not incorporate enough of these studies within their positivistic ambits, however that does not classify them as armchair speculators because they engage with sociological aspects in and of themselves. Instead, this essay purports that LP thinkers should incorporate more of the respective studies when answering the question ‘What is law?’ to move closer to the ‘harder scientific fact’ end of the classification spectrum.

Durkheim & Weber

Firstly, Austin and Hobbes’ conceptual analysis of social stability is very epoch concentrated instead of fluid as posited in sociology. Durkheim as a methodological holist focuses on the ‘collective consciousness’ asserting that “We do not act with an eye to our own personal interests” instead we “pursu[e] collective ends” which gives rise to “a solidarity sui generis” which “binds the individual directly to society” (‘Suicide’ [1897]). By observing this singular collective conscience, we gain insight into what the law is. However, Durkheim does not see the collective conscience, and therefore the law, as stagnant. He draws attention to organic solidarity where the ‘division of labour’ denounced a singular collective conscience, and the law reflected this interdependency by becoming more restitutive, exemplified in the Unfair Contract Terms act 1977 that prevents reversible agreements, instead of repressive as in mechanical solidarity.  This fluid perspective on social stability is not embraced by Austin who advances Hobbes’ analysis of the ‘Leviathan’. Austin contends that law is the command of a sovereign that obliges generally. Society is in habit of obedience to this determinate and common superior and the sovereign is not in habit of obedience to anybody. This habit of obedience is what creates social stability, however, as Hart asserts, Austin’s theory presumes a habit of obedience to every sovereign figure which cannot be the case as they would prospectively possess dissimilar characteristics. Austin, unlike Durkheim, thinks concentratedly about what creates social stability.

Furthermore, Weber in his explanation of rising capitalism embraces fluidity. For him social stability was previously created via enchanted means such as religion, but now, modernity expresses rationalization; the world is calculable and predictable. This rational knowledge constitutes objectification and in turn impersonality where subscription is not consequential of religion, but instead of an objective comprehension of the world, because codified by multiple people, can be done repeatedly, thus creating social stability. Although Weber shows appreciation for a sovereign like Hobbes and Austin, in that law should pass through the charismatic leader stage who ensues political legitimation and therefore stability, to reach Formal Rational Typology. However, this stage is temporary, it comes before the legal one, thus maintaining his fluidity and reasserting Austin’s epoch centred juristic approach.

Nevertheless, the charismatic stage is not calculable, hence not fully compatible with Weber’s thesis, thus suggesting it would be unjust to classify Hobbes and Austin as armchair speculators when the sociology it is suggestively ignorant of is imperfect, hence they must only be more incorporative of it.

Marxism

Marxism contends that Austin and Hart in their jurisprudential claims to stability and sanctions ignore conflict and coercion respectively. Marx asserts that the bourgeoise privately own the means of production and exploit the labour force for the creation of commodities to be exchanged against money. One consequence of this is workers become alienated from their own labour; they do not own the product they produce. To Marxists, the very nomenclature of being in ‘obedience’ to a sovereign possess exploitative sentiment which is unaccounted for by especially Hobbes and Austin. Their sovereign is not characterised as oppressive which ignores the coercive element of subservience.  However, you cannot classify them as armchair speculators because they acknowledge individualism in people deviating and being sanctioned, which is sociological in nature as contended by Kelsen. Instead, they are ignorant because they fail to characterise this deviation as the potential negation of an exploitative system, thus reiterating how they should include this within their positivistic scope but are not too isolated from socio-anthropological studies.

Critical Legal Theory (‘CLT’)

By considering Austin’s command theory criticisms in concomitance with Feminism and Critical Race Theory (‘CRT’), it becomes apparent how Austin ignores gender and race considerations. Austin’s command model has been critiqued for not distinguishing between threat-based orders and legal orders. Feminist theory would advance on this in their critique of liberalism saying he fails to consider power by non-state actors, such as historically that of the man over the woman in the domestic sphere.  As Jurisprudence is immersed in the liberal world view, a feminist critique of liberalism corresponds to a jurisprudential critique. Furthermore, Austin fails to distinguish obligation from being obliged. Feminism would advance on this contending, for example, if a  husband threatens to harm their wife for whatever reason, that is a threat and not an obligation, viewing it as an obligation, which on the premise of Austin’s theory it would be, produces a sexist and oppressive outcome in which such an action would be justified as being law because the male sovereign commands the woman and is not in the habit of obedience to anyone else in the home.

Additionally, Austin implies we are individualistic; we choose to be in habit of obedience to the sovereign. Feminists contend that we are not autonomous beings, instead the focus should be on vulnerability, it would account for potential coercion into being subservient to the sovereign. Additionally, CRT purport that individualism encourages racist structures by failing to distinguish colour and in turn recognize that feminist notion of “vulnerability” that minority groups are disposed to. If Austin considered race and gender, his sovereign would be characterised by considerations, for example, of a hegemonically masculine man or the white, middle-class man, to influence his understanding of how such characteristics contribute to the answer of what the law is, hence the potential ‘armchair speculation’ attached to his thesis.

In relation to Hart, if all rules exist by virtue of the ROR which in the UK is “what the Queen enacts as law” (‘The Concept of Law’ [1961]) then we must observe her characteristics as all other rules, existing by virtue of the ROR flow from it. CRT contend that race is an endemic feature of social arrangements and an imperative category of legal analysis. They disdain the “colour-blindness” of the law which Hart’s ROR emblems. CRT would argue that he needs to consider how the characteristics of the individual exercising the ROR affect what the content of the rules are and therefore what the law is. Furthermore, Hart is a soft positivist who acknowledges that while there is no necessary moral content to a legal rule or system, the system can necessitate moral criteria to validate it, as long as it is permitted by the ROR, therefore, the ROR can be emblematic of gender and race considerations without compromising Hart’s positivist identification.

‘Socio-Legal positivism and General Jurisprudence’ (Brian Z. Tamanaha)

Hart described The Concept of Law as a work in descriptive sociology implying that he does not ignore sociology. Therefore, an inspection into whether he satisfies his criteria is a useful measure of his ignorance towards sociology. For Hart, social stability is created by the ascension of primary and secondary rules to the ROR; they exist by virtue of it. However, Tamanaha asserts Hart’s secondary rules “fail to distinguish law from other sorts of institutionalised normative systems” of social control. This manifests in a more legally pluralistic approach to the identification of who has rule making power, rendering it to multiple institutions rather than one. Hart would have certainly opposed this in his assertion of an ultimate Rule Of Recognition, thus showing inconsistencies in attempt of a descriptively sociological theory; he misses a “fundamental feature of the identification of law”. However, Hart incorporates functionalism, as expressed in his necessary condition for a legal system that the populace should comply to primary rules as it aids the effective maintenance of social order. This efficacy requirement suggests that he “conceptually tied law’s essence to its function” which is sociological in nature, thus asserting how he is not an armchair speculator, but should refine his theory on secondary rules to be more inclusive of sociology and anthropology.

Conclusion

Sociology and anthropology provide comprehensive accounts of social stability and dispute settlement. Hart, Austin, and Hobbes cannot be rendered ignorant as to those studies. consequentially, they circumvent being termed armchair speculators and are instead positivist theorists who should incorporate the studies more, within their positivist scope, to theorise closer to the ‘hard scientific fact’ end of the spectrum.