Week 3 - The Variety of Laws and Sovereign and Subject

Objections to the Simple Legal Model

Viewing all laws merely as orders backed by threats ignores key legal realities like private and public powers, customary laws, self-binding statutes, and laws passed without full legislator comprehension. Comparing complex modern legal systems to simple coercive commands reveals numerous fundamental contradictions.

Objections to the Coercive Command Model

Three Categories of Legal Objections Objections to the simple coercive model fall into three main groups: content of laws, mode of origin, and range of application. Examining these areas demonstrates how actual legal systems diverge from the idea of a simple sovereign issuing orders.

Distinguishing Duties from Legal Powers

While criminal law and torts impose mandatory duties backed by sanctions, power-conferring laws serve a very different social function. Instead of ordering conduct, power-conferring rules provide individuals with facilities to create valid legal structures like contracts, wills, and marriages.

Nullity Versus Legal Offense Failing to follow rules when exercising a private power results in a nullity (no legal force) rather than a crime or a breach of duty. This key distinction shows that power-conferring rules enable legal choices rather than prohibit wrongdoing.

Categories of Private Power Rules Rules conferring private legal powers specify personal capacity, the proper form of execution, and the legal duration or scope of created rights. Together, these requirements define how individuals can validly construct legal relationships.

Laws Covering Public and Judicial Powers, difference from coercive commands

Beyond private facilities, legal systems also contain rules that confer public powers upon judicial, legislative, and administrative officials. These rules explain how government entities are empowered to act rather than simply commanding their behavior.

Judicial Powers and Court Jurisdiction Laws governing courts define a judge's jurisdiction, qualifications, and procedure rather than ordering them to act under threat of penalty. Their purpose is to establish the exact conditions under which judicial decisions are legally valid.

Jurisdictional Statutory Example Statutory provisions setting court limits explicitly outline authority rather than issue coercive commands. The phrasing used in such statutes shows that legal power is granted within specific boundaries rather than ordered. Judicial Overreach and Legal Invalidity When a judge exceeds jurisdiction, the resulting court order is not a crime but a defective decision liable to be quashed on appeal. Concepts of obedience and disobedience do not fit how court authority and procedural limits operate.

Power-Conferring Rules as Recipes for Duties Although jurists seek a single unified definition of law, power-conferring rules differ from duty-imposing rules by setting standards for valid action. Ultimately, rather than imposing duties directly, power-conferring rules serve as legal recipes for creating duties.

Laws Covering Legislative Powers, difference from coercive commands

Legislative Powers as Rules of a Game Subordinate legislative power functions like rules in a game, where failure to comply renders the resulting legislation a nullity rather than a violation. These procedural rules define how valid legal rights and duties can be created by an official body.

Voting and the Inapplicability of Obedience Legislators who vote for or against a bill are neither obeying nor disobeying a law requiring a majority. Treating legislative procedures as coercive commands distorts how democratic and legislative processes actually work.

The Fundamental Necessity of Power-Conferring Rules Modern social life depends on power-conferring rules to make everyday practices like buying, selling, marrying, and legislating possible. Without these empowering rules, essential legal institutions and concepts could not exist.

Nullity as a sanction: In support of Coercive theory, but why the argument doesn’t fit power-conferring rules

Nullity as a Legal Sanction One theoretical argument attempts to treat legal invalidity or "nullity" as a form of punishment used to compel compliance with procedural rules. Under this view, failing to fulfill required conditions for wills or contracts is viewed as a breach penalised by legal nullity.

Distinguishing Nullity from Punishment Conflating nullity with punishment creates confusion because legal invalidity is often not experienced as an evil or harm by the parties involved. Rather than suppressing undesirable conduct like criminal prohibitions do, power-conferring rules simply define the terms necessary to receive legal recognition.

The Inseparable Nature of Nullity While criminal duty-imposing rules can conceptually exist without attached penalties, power-conferring rules cannot be logically separated from nullity. Nullity is an internal, defining component of the power-conferring rule itself rather than an external sanction attached to force obedience.

Fragments of Laws Theory: how it changes Coercive theory, extreme v. moderate version

Kelsen's Extreme View of Law as Official Directives The extreme version of the fragment theory, advocated by Hans Kelsen, claims that all genuine laws are conditional orders directed at officials to apply sanctions. Under this view, rules prohibiting ordinary citizen conduct are merely the conditional "if-clauses" that trigger official enforcement rather than independent laws.

Restating Power Rules as Conditional Clauses By expanding these conditional "if-clauses," power-conferring and constitutional rules can all be restated as prerequisite conditions for officials to execute sanctions. This enables the extreme theory to reduce all legal rules—including contract terms, judicial jurisdiction, and legislative authority—into standardized directions for official enforcement.

The Shift to Official Directives This extreme theory shifts the central focus of law away from coercive orders given to citizens and onto instructions issued to legal officials. Consequently, a rule counts as a law if it directs an official to apply a sanction, even if officials face no punishment for failing to carry out that direction.

The Moderate Fragment Theory The moderate version of the theory keeps criminal laws as direct orders to citizens while treating power-conferring rules as fragments of complete coercive laws. Under this view, rules governing wills or contracts are merely conditional statements defining when legal duties and penalties are imposed on ordinary individuals.

Recasting Public Powers in the Moderate Model Legislative and constitutional power-conferring rules can similarly be recast under the moderate view as prerequisite clauses within citizen-directed orders. The key difference remains that these conditions ultimately lead to coercive commands aimed at citizens rather than instructions to officials.

Distortion as the price of uniformity: Why fragment theory of reducing law to official sanctions doesn’t fit with the variety of law

Primary Function of Criminal Guidance Criminal law primarily serves to guide citizens in directing their own conduct, relying on individuals to apply rules to themselves without official intervention. Focusing solely on court-enforced sanctions obscures this main purpose by prioritizing secondary measures meant only for system failures.

Distinguishing Fines from Taxes Treating law merely as directions to officials destroys the crucial distinction between a criminal fine for wrongdoing and a tax on conduct. Criminal sanctions imply a breach of duty set to guide public behavior, whereas taxes simply charge a fee without declaring conduct illegal.

Guidance Beyond the Bad Man Reducing law to official sanctions caters only to the "bad man" calculating penalties, ignoring citizens who seek law to guide conduct or arrange private affairs. The principal social function of law occurs in everyday life out of court rather than in litigation.

Private Powers and the Citizen as Legislator Reducing power-conferring rules to mere conditions for duties ignores their value in empowering citizens as private legislators. Private legal powers enable individuals to shape their own legal relationships through contracts and wills rather than merely submit to coercive duties.

Public Powers and the Step to the Legal World Misrepresenting public legislative and judicial powers as mere duty fragments obscures the purposeful work of creating and applying laws. Introducing rules that empower officials to change and adjudicate duty-imposing rules marks the fundamental transition from a pre-legal to a legal society.

Self-Binding Nature of Legislation as Objection to Coercive Order

Even penal statutes differ from simple coercive orders because legislation can bind the lawmakers themselves rather than merely directing others. Understanding legislation requires recognizing that laws are not inherently limited to commands imposed by an exempt ruler onto subjects.

Promises as a Model for Self-Binding Law, how shows the imperfections of the coercive model

Explaining how legislators bind themselves does not require splitting a lawmaker into separate public and private capacities. Instead, the act of making a promise offers a clearer model for understanding how individuals use established rules to create binding obligations for themselves.

The Mechanics of Promising Promising works because background rules allow individuals to alter their legal or moral status by following specific procedures. Through this process, a person exercises a rule-conferred power to impose binding obligations upon themselves without needing to issue commands to a separate self.

Legislation as Rule-Governed Obligation Creation Like promising, legislation relies on existing rules that determine who can enact law and through what procedure. Following these rules generates legal obligations for everyone within the law's designated scope, including the legislators who participated in passing it.

Comparing Legislation and Private Obligations Although legislation is more complex and lacks the two-party structure of promises, both rely on exercising legal powers to self-impose duties. Other legal acts, such as declaring oneself a trustee, provide additional useful parallels for understanding how legislation creates binding legal standards.

Legislation as General Standard Setting To correct the coercive model, legislation must be viewed as the creation or modification of general standards of behavior for society. Lawmakers exercise powers conferred by rules rather than standing outside the law as external commanders, frequently falling within the ambit of the rules they create.

Modes of Origin: How Custom is a Challenge to Coercive Orders

Unlike deliberate statutory legislation, customary law directly challenges the theory that all laws originate from an explicit command. Evaluating whether custom counts as law requires distinguishing legal custom from non-legal habits and defining what legal recognition actually entails.

Limits of Reducing Custom to Orders Although custom plays a secondary role in modern legal systems and remains subject to judicial testing, its legal status cannot be reduced to a command. Forcing customary rules into the framework of coercive orders stretches the definition of an order until it loses its meaning.

Tacit Order as counter to custom, why it is flawed

The Concept of Tacit Orders Under the coercive order model, legal rules originate either directly from a sovereign's explicit command or through authorized subordinates. To account for rules not formally enacted, the theory introduces "tacit orders," where a sovereign's non-interference is treated as silent approval.

The Military Analogy for Tacit Commands A military general who permits a sergeant to assign tasks without intervening illustrates how silence might be interpreted as a tacit command. In this model, a superior's deliberate choice not to interfere serves as a non-verbal substitute for an explicit instruction.

Custom as Pre-Existing Law The first major flaw in this account is the unwarranted assumption that custom cannot possess legal status. Just as statutes are legally binding before litigation occurs, legal systems can recognize certain customs as existing law that judges are bound to apply.

Dogmatic Defenses of the Command Theory Rebuttals defending the tacit order model rely on the dogmatic (don’t consider other side, only one’s belief) premise that no rule can be law without a prior command. Judicial tests like the English requirement of "reasonableness" reflect specific legal traditions rather than a universal rule that custom lacks status before trial. prior to court enforcement. Just as statutes are legally binding before litigation occurs, legal systems can recognize certain customs as existing law that judges are bound to apply.

The Inapplicability of Tacit Will in Modern States A second criticism is that a sovereign's failure to intervene cannot realistically be treated as a tacit expression of will. Modern legislatures rarely know about specific customary rules, making it impossible to interpret their inaction as a deliberate endorsement.

Summary of Objections to the Coercive Model

The coercive order model fails because legal systems naturally include self-binding laws, power-conferring rules, and rules rooted in custom. These three fundamental features show that legal systems extend far beyond simple commands issued by a sovereign to subjects.

he Error of Distorting Legal Uniformity Attempts to rescue the coercive model—by expanding sanctions, treating rules as fragments, or assuming tacit orders—impose a false uniformity on law. Ultimately, forcing all legal rules into a single coercive framework obscures legal reality, which relies on a combination of diverse rule types.

Defining Habitual Obedience

Complexity of Obedience and the Model of Rex Defining obedience is complex because individuals often perform legally mandated actions independently of coercive orders. To examine the concept of habitual obedience, we can construct a simplified hypothetical society ruled by an absolute monarch named Rex.

The Nature of Habitual Compliance Under Rex While obeying burdensome laws lacks the unreflective nature of personal habits, compliance under Rex exhibits predictable repetition over time. Most subjects in this society regularly obey his commands and are likely to continue doing so.

Convergent Personal Habits of Obedience Habitual obedience under Rex represents a series of individual relationships between each subject and the ruler. The population's overall obedience simply reflects convergent individual habits rather than a shared social duty.

Minimal Requirements for Sovereignty and State Unity Sovereignty under this simple model requires only personal compliance from subjects without any reflection on the legitimacy of the monarch's commands. This shared compliance creates a basic social unity that allows the community to function as a state.

Showing Cracks in explaining orders backed by threats through Habitual Obedience

The Problem of Succession and Interregnum (period with no leader) Habitual obedience to a deceased monarch does not automatically transfer to a successor like Rex II. Until the populace establishes a new habit of obedience over time, an interregnum exists where no valid laws can be made.

Continuity of Lawmaking Through Succession Rules Legal systems avoid governance gaps by enacting rules of succession that designate who holds lawmaking power in advance. Under such rules, a successor possesses the right to legislate immediately upon taking office, even before personal habits of obedience develop.

Inadequacy of Habit in Explaining Legislative Rights Concepts like the right to succeed cannot be explained through mere habits of obedience, which lack normative force. Securing continuity requires a broader social practice wherein the community accepts a fundamental rule of succession.

Defining Social Rules

Distinguishing Social Habits from Social Rules Explaining rule acceptance requires distinguishing mere group habits from true social rules. While both involve regular behavior across a group, social rules possess distinct normative characteristics that habits lack.

Criticism and Pressure as Rule Indicators Deviations from mere habits provoke no social criticism, whereas deviations from social rules are treated as faults subject to criticism. Threatened breaches of rules are met with social pressure to force compliance with the standard.

Legitimate Justification for Social Criticism In a rule-based system, community members view criticism for nonconformity as legitimate and justified rather than arbitrary. This shared recognition of justified criticism persists even if a minority of members break or reject the rule.

Difference between Social Rules and Habits

Internal Aspect of Social Rules Unlike habits, which merely require observable behavioral consistency, social rules possess an internal aspect. Members actively regard the required conduct as a common standard that the entire group ought to follow.

Reflective Critical Attitudes and Normative Language The internal aspect of rules is illustrated by game players who hold a reflective critical attitude toward proper moves. This normative perspective displays itself through shared standards, criticism of improper play, and language like "right" or "wrong."

Critical Attitudes Versus Subjective Feelings The internal aspect of rules is not merely a subjective feeling of compulsion or emotional pressure. Instead, it consists of a shared reflective commitment to evaluate conduct using normative terms like "must," "ought," and "should."

Legislative Authority Created by Rules When a society accepts a rule authorizing Rex to set standards, his commands become binding laws rather than mere orders backed by threats. This authority grants the monarch the right to legislate while also making it possible for him to be bound by his own laws.

Public Acceptance of Monarchical Standards Legislative authority relies on social practices where the ruler's enactments serve as recognized standards for conduct. Deviations from these enactments justify public criticism and demands for compliance across the community.

Rule Abandonment and Presumed Continuity Legal authority can be lost if a society abandons its fundamental rules through revolution or insurrection. In the absence of such disruptions, courts and society presume that previously accepted rules of succession remain in force.

Limitations of Habitual Obedience in Law Habitual obedience fails to explain legal continuity because habits lack normative power and cannot confer rights on successors. Only accepted rules can refer to future classes of legislators and ground their authority to govern.

Division of Rule Acceptance in Modern States While members of a simple tribe might all understand their basic rules, citizens in a modern state rarely understand complex constitutional standards. In modern legal systems, explicit rule acceptance is primarily concentrated among legal officials and experts. Active Official Acceptance and Passive Citizen Compliance Legal systems depend on both the active acceptance of constitutional rules by officials and the passive compliance of ordinary citizens. While command theories accurately capture passive obedience, a complete understanding of law requires recognizing how officials actively identify and apply rules.

Why habits of obedience model fails to explain the persistence of old laws

Timeless Rules of Recognition as the Solution Modern citizens do not habitually obey past sovereigns, yet laws from earlier eras remain valid through currently accepted rules of recognition. These fundamental rules have a timeless reference, looking backward to authorize past legislation just as they look forward to future laws.

Continuity and Persistence in Rule-Based Systems Under an accepted general rule, a sovereign's enactments survive their death because successive generations continue to respect that underlying rule. Just as an umpire's early call remains binding through later tournament rounds, past laws retain their force under current rules.

Attempts to Simplify Legal Persistence Recognizing a rule that authorizes past, present, and future lawgivers introduces a sophisticated layer to legal theory. Command theorists attempt to bypass this complexity by attributing the persistence of laws to habits of obedience to the present ruler.

The Theory of Tacit Sovereign Orders Theorists like Hobbes, Bentham, and Austin argue that past laws endure because the current sovereign tacitly adopts them. In this view, a sovereign's failure to interfere with judicial enforcement of old statutes signals a tacit command to treat them as law. Flaws in the Tacit Order Doctrine Statutes do not become law only when applied by courts, as both ancient and modern statutes possess full legal status prior to litigation. Courts apply past statutes because they are already valid law under accepted rules, not because the current sovereign tacitly commands them. Distinguishing Valid from Repealed Legislation The tacit order theory cannot explain how courts distinguish between active past statutes and those previously repealed. Courts draw this distinction using fundamental rules of legal validity rather than assessing the current sovereign's silent acquiescence.

Why Compromise between realism and coercive laws doesn’t explain persistence of laws

Official Acceptance Versus Radical Realism The tacit command theory rightly reflects that courts must accept rules of recognition for laws to function, but it should not be confused with Legal Realism. Realism wrongly asserts that no statute carries the force of law until a court actually applies it.

The Untenability of Compromise Theories Treating modern statutes as immediate law while requiring past statutes to be applied by courts creates an illogical double standard. Since past and present enactments share identical legal status, both are law prior to judicial application under accepted rules.

Concept of the Legally Unlimited Sovereign

Classical sovereignty theory defines a sovereign as an entity that receives general obedience while obeying no one else, placing them outside legal limitations. The theory asserts that every legal system inherently requires the existence of such an legally unrestricted sovereign.

Legal Limits Versus Non-Legal Restraints The sovereign theory acknowledges that rulers may defer to popular opinion or moral convictions, but it classifies these purely as non-legal restraints. Unless a rule specifies otherwise, courts will enforce a sovereign's orders regardless of whether those orders violate social or moral standards.

Identifying Laws and Manner-and-Form Rules The sovereign model offers a clear way to identify valid laws and independent legal systems, even when rules prescribe specific procedural forms for official enactments. So long as procedural rules do not restrict the scope of what can be enacted, the ruler's legislative authority remains legally unlimited.

How Limitations are made to Sovereignty Model

Disabilities and Rule-Based Legal Validity Legal limitations consist of rule-based disabilities that qualify a legislator's authority rather than duties owed to a superior. Validating a law requires showing that it satisfies existing qualifying rules without breaching relevant restrictions, rather than tracing it back to an unlimited sovereign.

Substantive Legal Limits in Modern Legislatures A legally unlimited sovereign is not a necessary condition for a legal system, as many modern states operate with restricted legislatures. Written constitutions frequently impose substantive limitations that exclude specific subject matters entirely from a legislature's legal competence.

Constitutional Restrictions and Legal Validity If a monarch's authority is bound by constitutional prohibitions, any enactment violating those restrictions is legally void. Unlike moral considerations, courts are legally required to evaluate these constitutional boundaries to determine whether a legislative act holds legal force.

Legal Disabilities Versus Legal Duties Constitutional limitations impose legal disabilities that negate legislative power rather than legal duties that mandate behavior. Saying a supreme legislature "cannot" pass a specific law means it lacks the power to create a valid enactment, not that it has committed an illegal act.

Constitutional Rules Beyond Habits of Obedience Constitutional limitations serve as authoritative criteria of legal validity for courts rather than reflections of a ruler's habits of obedience. A sovereign who exceeds constitutional powers fails to make a valid law, but they do not disobey a superior legislator or breach a legal duty.

System Independence and External Authority Demonstrating that a legal system is independent requires showing that its qualifying rules do not subordinate its legislature to an outside authority. However, freedom from external control does not mean the internal legislature possesses unlimited power within its own territory.

Supreme Authority Versus Unlimited Authority A legislative body can be the supreme authority within a legal system while still remaining subject to constitutional limits. Supreme authority means no other internal authority can repeal its valid enactments, not that its lawmaking powers are unrestricted.

Evidential Nature of Obedience Habits A legislator's personal habits of obedience serve merely as indirect evidence regarding whether their authority is legally subordinate to another. The true determinant of legislative power lies in the presence or absence of rule-based limitations, not personal compliance habits.

Trying to reconcile Unlimited Sovereignty with Modern Legal Systems

Searching for Sovereignty Behind Limited Legislatures Many modern legal systems contain supreme legislatures that are subject to legal limitations while still producing valid law. To preserve the traditional sovereignty theory, theorists must search for an unlimited sovereign behind these restricted legislative bodies.

Substantive Constitutional Limitations on Legislative Power Substantive limitations in federal constitutions, such as individual rights protections or federal divisions of power, explicitly restrict what a legislature can enact. When a legislature passes statutes that conflict with these substantive constitutional limits, courts declare those enactments ultra vires and invalid.

Enforcement Mechanisms and Unreviewable Constitutional Provisions Constitutions protect their provisions using various methods, though not all restrictions are subject to judicial review. In systems like Switzerland or under legal doctrines such as "political questions," courts refrain from declaring non-compliant statutes invalid, leaving enforcement to political channels

Constitutional Amending Powers and Unalterable Provisions Constitutional limits on ordinary legislatures can often be altered through special amendment procedures exercised by distinct bodies or supermajorities. However, some constitutional limitations are explicitly excluded from amendment altogether, creating absolute limits that even the amending power cannot override.

Issues with sovereignty model

The Problem of Identifying Sovereignty in Amending Bodies Identifying a sovereign is relatively simple if the legislature itself can remove its own limits through a special procedure. The theory faces significant difficulty when limits can only be altered by a separate amending body or when provisions are permanently unamendable.

Austin's Location of Sovereignty in the Electorate John Austin argued that sovereignty resides not in elected legal representatives, but in the electorate itself. Under his view, members of parliament or congress are merely trustees, making the voting public the true sovereign in democratic legal systems.

The Electorate as the Extraordinary Supreme Legislature Sovereignty theorists claim the difference between limited and unlimited legislatures lies in how the electorate delegates its sovereign authority. In systems with written constitutions, the electorate acts as an extraordinary legislature that imposes legally binding boundaries on its ordinary representatives.

Breakdown of Simple Sovereignty Models in Democratic States Equating the electorate with a sovereign requires distorting the original definitions of a sovereign person and habits of obedience. This conceptual expansion fails unless rules are introduced to explain how democratic bodies function, undermining the simple command theory.

Paradox of the Electorate Obeying Itself Defining the voting population as sovereign creates the paradoxical conclusion that the bulk of society habitually obeys itself. This collapse of the distinction between ruler and subject destroys the core legal concept of orders and obedience.

Why Rules are Necessary to Define Limitations to Sovereignty

The Necessity of Rules to Define Official Capacity Distinguishing an individual's private capacity from their official capacity as an elector relies entirely on underlying legal rules. Without rules specifying qualifications and procedures, we cannot identify official voter actions or valid democratic choices.

Constitutive Rules Cannot Be Sovereign Orders Rules that define the electorate and specify voting procedures cannot themselves be sovereign commands. These constitutive rules must logically precede any sovereign action, as no valid order can exist until the rules are fulfilled.

Why other theories can’t explain legal systems

Constitutive Rules as the Foundation of Legal Authority Constitutional and procedural rules are not mere descriptions of habits, but are foundational rules that create and define the sovereign entity itself. Attempting to reduce these constitutive rules to habits either fails conceptually or returns the argument to a legally limited legislature.

Inadequacy of Habits and Orders in Legal Analysis The theoretical framework of orders, habits, and obedience is fundamentally incapable of explaining legal systems. A comprehensive analysis of law requires power-conferring rules that qualify legislators and define procedures for valid enactment.

Unreality of Tacit Orders by the Electorate Conceiving constitutional limitations as tacit orders issued by the electorate to the legislature misrepresents political reality. A public's failure to exercise complex constitutional amendment procedures reflects ignorance or apathy rather than a tacit command.

Failure of Sovereignty Theories Facing Absolute Limits Where constitutional provisions are completely unamendable, even the electorate remains legally limited and cannot qualify as an illimitable sovereign. Attributing unamendable restrictions to tacit orders backed by non-revolution destroys the crucial distinction between legislation and revolution.

Applicability of Limited Supreme Authority Beyond Democracies Equating the sovereign with an electorate fails to account for non-democratic systems with legally restricted rulers. A monarch can exercise supreme legislative power within a system while remaining subject to clear constitutional boundaries.