Domesticating Kelsen: Towards the Pure Theory of English Law 1788111419, 9781788111416

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Domesticating Kelsen

ELGAR STUDIES IN LEGAL THEORY Series Editor: Wojciech Sadurski, Sydney Law School, University of Sydney, Australia Elgar Studies in Legal Theory is a new series designed to cultivate and promote high quality works of scholarship on all aspects of legal theory. The focus of the series is on the development of original thinking in legal theory, with topics ranging from law and language, logic and legal reasoning, morality and the law, critical legal studies, and transnational law. Innovative work is encouraged from both established authors and the new generation of scholars. Titles in this series include: Authority in Transnational Legal Theory Theorising Across Disciplines Edited by Roger Cotterrell and Maksymilian Del Mar Legal Conversation as Signifier Jan M. Broekman and Frank Fleerackers Technology and the Trajectory of Myth David Grant and Lyria Bennett Moses Legal Theory and the Media of Law Thomas Vesting Gender, Alterity and Human Rights Freedom in a Fishbowl Ratna Kapur Law and Evil The Evolutionary Perspective Wojciech Załuski The Turning Point in Private Law Ecology, Technology and the Commons Ugo Mattei and Alessandra Quarta The End of Law How Law’s Claims Relate to Law’s Aims David McIlroy Domesticating Kelsen Towards the Pure Theory of English Law Alexander Orakhelashvili

Domesticating Kelsen Towards the Pure Theory of English Law

Alexander Orakhelashvili University of Birmingham, UK

ELGAR STUDIES IN LEGAL THEORY

Cheltenham, UK • Northampton, MA, USA

© Alexander Orakhelashvili 2019

All rights reserved. No part of this publication may be reproduced, stored in a retrieval system or transmitted in any form or by any means, electronic, mechanical or photocopying, recording, or otherwise without the prior permission of the publisher. Published by Edward Elgar Publishing Limited The Lypiatts 15 Lansdown Road Cheltenham Glos GL50 2JA UK Edward Elgar Publishing, Inc. William Pratt House 9 Dewey Court Northampton Massachusetts 01060 USA

A catalogue record for this book is available from the British Library Library of Congress Control Number: 2018967918 This book is available electronically in the Law subject collection DOI 10.4337/9781788111423

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ISBN 978 1 78811 141 6 (cased) ISBN 978 1 78811 142 3 (eBook)

Contents References to Kelsen’s worksvi 1

The essence and basic methods of the pure theory

1

2

The state and the law

20

3

Law and its ‘others’: natural law, morality and social policy

33

4

Constitution and normative hierarchy

83

5

The basic norm and efficacy of the legal system

149

6

The rule of law

193

Conclusion199 Index201

v

References to Kelsen’s works APSR AS BN Constitution Essays Ethics Fiktionen

GT Hauptprobleme HLR JR

LQR

PLT RR SJS SLR Social Technique

Science and Politics, 45 American Political Science Review (1951), 641 Allgemeine Staatslehre (Berlin, 1925) On the Basic Norm, 47 California Law Review (1959), 107 The Function of a Constitution, in R Tur and W Twinning (eds),Essays on Kelsen (1986) Essays in Moral and Legal Philosophy (1973) Foundations of Democracy, 66 Ethics (1955), 1 Zur Theorie der juristischen Fiktionen. Mit besonderer Berücksichtigung von Vaihingers Philosophie des Als Ob, 1Annalen der Philosophie (1919), 630 General Theory of the Law and State (1940) Hauptprobleme der Staatsrechtslehre Entwickelt aus der Lehre vom Rechtssatze (1923) The Pure Theory of Law and Analytical Jurisprudence, 55 Harvard Law Review (1941), 44 Judicial Review of Legislation: A Comparative Study of the Austrian and the American Constitution, 4 Journal of Politics (1942), 183 The Pure Theory of Law, Part I, 50 Law Quarterly Review (1934), 474; and The Pure Theory of Law, Part II, 51 Law Quarterly Review (1935), 517 Introduction to the Problems of Legal Theory (1992) Reine Rechtslehre (1934) Soziologishe und Juristische Staatslehre (1922) Professor Stone and the Pure Theory of Law, 6 Stanford Law Review (1965), 1128 Social Technique – The Law as a Special Technique, 9 University of Chicago LR (1941) vi

References to Kelsen’s works

Souveränität

WPQ YLJ

Das Problem der Souveränität und die Theorie des Völkerrechts (2nd edn, 1928, reissue Scientia Aalen, Tübingen 1960) The Natural-Law Doctrine before the Tribunal of Science, 2 Western Political Quarterly (1949), 481 Law, State and Justice in the Pure Theory of Law, 57 Yale Law Journal (1948), 377

vii

1. The essence and basic methods of the pure theory 1.1

THE MEANING OF PURITY

Hans Kelsen’s pure theory of law fascinates as many observers as it alienates. There certainly is a tendency to regard Kelsen’s theory as too structured, categorical, formalistic and unsuitable to the empiricism and alleged dislike for the abstract principle in common law jurisdictions. But English law is still a system consisting of rules prescribed by constitutionally established authorities, and it has to operate as a single coherent whole for its viability and legitimacy to be preserved, and for it to avoid dissolving into, or being seen as, a set of arbitrary prescriptions and procedures whose legitimacy could, at times, be questioned. This analysis requires the exposition of basic categories of pure theory as one of the most complex theories of the law, clarifying their essence, before the relevant matters arising in English law can be examined through the prism of this theory. The purity of legal method is meant as no more and no less than a consistent presentation of positivism, using only and exclusively the positivist legal method to explain the validity and content of legal norms, and distinguish these norms from social, political and ethical considerations that may historically or sociologically account for the creation of those legal norms. The basic task of the pure theory distinguishes this theory from all other legal theories. The pure theory ‘seeks to discover the nature of law itself, to determine its structure and its typical forms, independent of the changing content which it exhibits at different times and among different peoples’.1 Thus the ‘pure theory of law … is a science, and not meta-physics. This science seeks the real and possible law, not the just, and in this sense it is radically realistic and empirical. It declines to justify or condemn.’2 The cognition and understanding of legal systems, not their assessment or critique, nor their H Kelsen, The Pure Theory of Law and Analytical Jurisprudence, 55 Harvard Law Review (1941), 44 (‘HLR’). 2 HLR, 49. 1

1

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Domesticating Kelsen

defence or approval, or any attack against them and their disapproval. The pure theory is neither apologetic nor critical with regard to any legal system whatsoever. Kelsen’s own statement illustrates the extent of the contrast as part of the statement of the pure theory’s mission: ‘Only norms, provisions as to how individuals should behave, are objects of jurisprudence, never the actual behavior of individuals.’ Furthermore, ‘the propositions of jurisprudence are not themselves norms. They establish neither duties nor rights. Norms by which individuals are obligated and empowered issue only from the law-creating authority … It is of the greatest importance clearly to distinguish between legal norms which comprise the object of jurisprudence and the statements of jurisprudence describing that object.’3 Recognising jurisprudence as a source of law is compatible with the natural law approach, but not with the legal positivism. ‘The ought-statements in which the theorist of law represents the norms have merely a descriptive import; they, as it were, descriptively reproduce the “ought” of the norms’. 4 It is, therefore, highly important to distinguish between legal norms which are the product of the law-creating process and object of jurisprudence, and the statements of jurisprudence. Kelsen refers to the view of Joseph Bingham that: If we are to view the law as a field of study analogous to that of any science, we must look at it from the position of the law teacher, the law student, the legal investigator, or the lawyer who is engaged in searching the authorities to determine ‘what the law is’. These men are not directly acting as part of the machinery of government. Their study is not part of the external phenomena which compose the field of law. They are studying that field from without and therefore from the position which will give a wholly objective and the least confusing view.5

1.2

METHODOLOGY AND THE ESSENCE OF LEGAL KNOWLEDGE

Kelsen explains that ‘there is no essential difference between analytical jurisprudence and the pure theory of law. While they differ, they do so because the pure theory of law tries to carry the method of analytical jurisprudence more consistently than Austin and his followers.’6 The pure theory aims to be the most comprehensive guide to understanding the positive law. Thus it aims not at being a new theory, but merely at the progression of positivist reasoning right down the line. 5 6 3 4

HLR, 50–1; H Kelsen, General Theory of the Law and State (1940) (‘GT’), 163. GT, 163. J Bingham, What is the Law? 11 Michigan LR (1912), 10. GT, XV; HLR, 54.

The essence and basic methods of the pure theory

3

The purity of the legal method means no more, and no less, than that the legal theory answers all questions solely through the use of the positivist method. It addresses the positive law as a whole, from the point where the authority producing law is established to the point where the law is ultimately enforced or applied with regard to the conduct of individuals. The purity of the legal method does not mean having an adverse view on non-legal considerations or pronouncing them irrelevant. They are just separate from legal considerations that form the object of the pure theory. Kelsen explains that ‘every assertion advanced by a science of law must be based on a positive legal order or on a comparison of the contents of several legal orders’. Purity of legal method is secured through separation of positive law analysis from legal sociology and philosophy of justice.7 Pure theory was the methodische Selbstbesinnung of legal science, meant to be an independent discipline rather than part of sociology, and the foundation of legal science as science.8 This priority was meant to avoid placing the legal theory at the service of any political or economic agenda.9 The anti-ideological character of pure theory turns it into a true science of law.10 Kelsen’s drive to separate the legal method from that of sociology, ethics or other disciplines has set his theory against both of the jurisprudential tradition established across the continental-common law divide, against the background of which he was developing his own theory, and of the multiple theoretical approaches developed subsequently. Much as the inclination to study not the law as such but the law in connection with some extra elements is represented in several modern theoretical approaches, it has been characteristic of legal science since the nineteenth century at the latest. To illustrate, Rudolf von Ihering has claimed that legal science ‘has the purposive as its object’, ‘experience having reference to the assured attainment of certain human purposes’.11 Roscoe Pound was emphasising that ‘[t]he futility of a self-sufficing, self-centered science of law has become apparent to jurists’. Pound, however, admitted that a proper study of social interests, of subserving them and of the actual social effects of legal institutions and legal doctrines cannot be performed by courts, law-teachers or law-writers, ‘except within narrow limits’.12 In other words, the limits on the reach of legal methodology

9

GT, XV. K Larenz, Methodenlehre der Rechtswissenschaft (1975), 74. Larenz, 75. 10 GT, XVI. 11 R von Ihering, Law as a Means to an End (1913), 329. 12 R Pound, Courts and Social Problems, 18 American Journal of Sociology (1912), 331 at 341. 7 8

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are by and large obvious to those finding themselves at various ends of the doctrinal spectrum. The purity of the law and legal method runs into the broader inter-disciplinary and social implications of legal systems that no doubt generate the discussion of the range of values on which various parts of the society hold different views. One commentator suggests that: So long as logical consistency is one of the aims of legal science some logical model justifying non-contradiction and subsumption is an essential part of legal theory. Kelsen’s model, it is submitted, is the best which theory has so far achieved. However, there are other aims which legal scientists commonly set themselves, such as the historical and sociological explanation of the origin and application of rules of law, the moral or political justification or criticism of such rules, and policy-oriented suggestions for the interpretation of such rules in doubtful cases and for the enactment or repeal of such rules. Kelsen's theory, by insisting on ‘pure’ cognition – that is, the logically consistent arrangement of legal source materials without reference to history, purpose or policy – as the hallmark of legal science, impliedly downgrades these other aims.13

Kelsen does not downgrade the relevance of non-legal considerations, but merely delimits the scope of his own theory. A preference for doing one thing at a time is not the same as insisting that other things ought not to be done. Another commentator has suggested that, ‘if we were to construe Kelsen’s theory of law and the state as a neutral, unqualifiedly agnostic theory … this would mean that as a matter of principle we have deprived ourselves of a full understanding of that theory, deliberately choosing not to take into account its complex and multiform ideal valence’.14 Furthermore, ‘[t]he pure theory of law is a relativistic theory, to be sure, but it does not resolve itself into an absolute scepsis. Kelsen’s relativism is itself relative, in that it presupposes an all-embracing value, that of tolerance.’15 Kelsen’s own take is that what he does not want to presume is that the essence of the law, to be cognised scientifically, depends on or is nourished by some extra-legal factors. The pure theory does not require one to believe that God does not exist or to be uncertain about his existence, nor to hold that socio-political or ethical forces play no role in the development of the law. The pure theory merely emphasises that the law is a system of its own, being a creature of human societies and, to operate properly, a legal system must be

JW Harris, When and How Does the Grundnorm Change? 29 CLJ (1971), 112. A Carrino, Logistic Normativism: The Wiener Rechtstheoretische Schule, in E Pattaro and C Roversi (eds), Legal Philosophy in the Twentieth Century: The Civil Law World (2016), 75. 15 Carrino, 75. 13 14

The essence and basic methods of the pure theory

5

able to give to its prescriptions such meaning as are determined by that legal system itself. It may be discussed whether or how being a vegetarian impacts the biological development of a human body or more broadly is conducive to the environment, or is required on ethical grounds; whether a mechanical engine is workable and feasible or whether its operation is financially onerous or environmentally harmful. Those broader considerations attending every single such matter notwithstanding, no rational man would deny that biological organisms or mechanical engines can and should be studied by reference to their own inherent elements and characteristics, within the methodological framework of the relevant disciplines, if only because only after the analysis through that ‘narrower’ specialised methodological framework would it be possible to identify the broader impact of the relevant phenomena. Thus, no one criticises physics, mechanics or biology because they are ‘agnostic’ to ethics, and there is no reason why the law should not be treated in the same way. Similarly, there can be no single theory explaining all aspects of social life (which is why we have a number of social sciences), but there can be a theory explaining all aspects of one particular area of social life, in this case legal systems. The pure theory singles out its own object, pursues it with analytical rigour and precision; and leaves other aspects to other theories to handle. Kelsen explains that jurisprudence creates legal concepts, while a legal order creates legal norms on the basis of which legal science creates legal concepts. Legal science does not create rules the way geometry shapes objects and bodies.16 It addresses the legal regulation of objects that already exist and represent the natural or social reality. In this respect, Kelsen has contrasted his methodology to that of the organic theory of the law and State. An overall characteristic of the organic theory is that it does not strictly delineate the boundaries between legal observation and sociological observation, and recognises no firm boundary between the law and sociology. It is based on the monist perception that views social and legal phenomena as part of the single category, which is opposed by the dualist world view which enables the development of juridical theory of State and law.17 The essence of the monist approach in this area is the insistence that everything must be seen as having the socio-organic nature, and that nothing different from that could possibly exist. This way the legal theory in effect ends up importing the methodology of other social sciences at the risk or at the

H Kelsen, Hauptprobleme der Staatsrechtslehre Entwickelt aus der Lehre vom Rechtssatze (1923) (‘Hauptprobleme’), 94. 17 Hauptprobleme, 177. 16

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Domesticating Kelsen

cost of compromising or even displacing the integrity of the legal methodology it is supposed to be using. Thus the pure theory insists upon the limitation of the task of legal science, its concentration on the substance and content of actual law enacted by constitutionally empowered authorities, which gives the separate content and distinct methodological edge to legal science. The pure theory makes legal norms (rules) the chief object of its scientific cognition. Legal norms are not the only kind of norms and the law is not the only system of norms. However, the law differs from other normative systems in that it can be ascertained by reliance on the evidence that is external to the mind and consciousness of the one who tries to take cognition of it. Such external evidence relates to the authority that lays down laws binding on individuals and other entities regardless of the latter’s will. On the same conditions, such laws are positive laws that can be enforced by the same system which lays it down. Obviously, the law is not the only normative system that constrains people in their actions, and in all societies people do feel constrained by moral and ethical imperatives in their mutual relations. Similar to law, other normative systems, even ethical and moral norms generally accepted in a particular society come in conflict with interests and aspirations of individuals; a particular individual might see a moral and ethical norm just as intrusive to its freedom or interests and just as discomforting as some individuals would see the rules of positive law. However, the law differs from other normative systems by impacting individual freedom through the operation of a system external to those individuals’ wishes, desires, feelings and motivations. The legitimacy of the system, regulation, and enforcement all are external to the individual’s existence and preferences. The pure theory examines this process of external impact from start to finish. The principal feature of the law is its regulatory function and normativity; before the law is a coercive system, it is a system of norms that regulate human behaviour, i.e. prescribe the conduct required from the norm’s addressee, and thus provide for the criteria that distinguish lawful from unlawful activities. Asking what exactly is binding and enforceable through coercion is analytically anterior to speaking about that coercion and enforcement. Law’s impact on the individual freedom, and thus on real life, begins with its regulatory function. The connection between the authority behind legal norms conferring binding force to them, the content of those norms, and the entitlement of the system to enforce those norms exposes the principal connection between the nature of positive law and the fact that individuals are free and autonomous units unless constrained in their conduct and freedom by rules of that positive law. As suggested, ‘“Authority” is a specific justification for accepting a prescription precisely when the prescription does not follow with inferential clarity

The essence and basic methods of the pure theory

7

from other prescriptions we already accept … inference is not required for authority.’18 In other words, positive legal norms have the binding force, which does not depend on any further or alternative justification or rationalisation. The content of legal norms cannot be identified through judgement, deduction or appreciation. Instead, it has to be identified from the will of the constitutionally empowered law-making authority. Owing to the impact positive law has on individual freedom, it is qualitatively distinct from other normative systems, and it should be studied on its own merit and separately from those other systems as well. This is what pure theory does.

1.3

BASIC CONCEPTS AND THEIR FORMATION

Every theory has to provide its own thinking categories to further develop its analysis. The pure theory’s outlook has been impacted upon by Kelsen’s neo-Kantian orientation that emphasises the relevance of concepts in enabling the study of evidence by organising empirical evidence meaningfully.19 As a starting point, one wonders whether there is any inherent contradiction between conceptualism and empiricism, whether experience can be meaningfully studied without in the first place identifying its meaning, scope and relevance. In addition, the extent to which empiricism can be prioritised can depend on the aims of a particular theory. Legal sociology will focus on predicting legal outcomes. By widening or narrowing down the range of the data and experience to be studied and treated as relevant, each theory may arrive at conclusions that are not cognisable under, or directly contradict the findings of, any other theory. Like many other theories, the pure theory proposes its own basic concepts that enable it to follow through the scientific take on law through elaboration of concepts. This process of the elaboration upon concepts is meant to secure the pure theory’s analytical economy. Most importantly, therefore, the relevance of concepts for the pure theory is rather minimalistic, focused on common denominators of all legal systems. The pure theory’s concepts are so framed as to allow capturing the identification of features of any particular legal system developed pursuant to the experiences of that legal system. The mutual coherence of legal concepts is not just a theoretical whim; legal theory addresses the legal order that, just like any other mechanism or machinery, operates as a system of mutually supportive and reinforcing elements.

JW Harris, Kelsen’s Concept of Authority, 36 CLJ (1977), 353 at 358. Cf. R Cotterrell, The Politics of Jurisprudence – A Critical Introduction to Legal Philosophy (1989), 107. 18 19

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Domesticating Kelsen

A coherent or plausible legal theory has to adopt the same attitude towards coherency. Then, the level of theorisation adopted, high or low, is meant to capture the basic elements of legal systems as they actually operate, not just as they are perceived by theoretical or ideologically minded observers. Kelsen explains that any concept consists of its features or elements that are so essential to it that without them that concept would lose its essence.20 Only such features or elements count in which the legal method is distinctly interested, as opposed to categories of ordinary perception that may arise with regard to the operation of any legal system. As we shall see throughout this study, nothing that could be analytically avoided or evaded is presupposed by the pure theory; concepts are needed to explain what actually happens within the legal system. Then, the reduction of those concepts to ideas and elements that could be derived from simple modes of human thinking (Denkmodus) not only secures the pure theory’s analytical economy but also provides these concepts with analytical transparency and makes them incontestable. As the law is the sole object of cognition of the positivist legal science, the meaning of concepts it uses should be independent from anything that the system of law does not incorporate in itself. Accordingly, if somewhat critically, it has been noted that with the pure theory, ‘[t]he state is in the first place desubstantivized, “formalized,” and resolved into the pure relations of the legal norm, and justice is reduced to the positive law’.21 Other concepts that also appear as categories of ordinary perception are also defined by the pure theory in the manner that appears suitable for the positivist legal methodology. To illustrate, duty is defined as one prescribed by constitutionally empowered authorities, as distinguished from duty perceived as value in the philosophical tradition (such as with Kant).22 A further implication of using this methodology is that concepts are presented as complexes of legal norms, not ones invented by the pure theory but as ones created by the legal system.

1.4

IS AND OUGHT

There are two principal elements with which the pure theory operates: Is (Sein), which relates to actual facts on the ground, the actual state of affairs; and Ought (Sollen), which is about facts and outcomes as the law requires them

Hauptprobleme, 577. Carrino, 79. 22 For overview see Larenz, 82–3. 20 21

The essence and basic methods of the pure theory

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to be.23 Kelsen further explains that the essence of Sollen is premised on the distinction between laws of nature, dealing with what will inevitably happen, and juridical laws that stipulate what ought to happen.24 It is the latter to which Sollen relates, whereby its embodiment of the elements of will, command and prescription is exposed. The element of Sollen is a key implication of law’s normativity, set of normative prescriptions or requirements, direction to someone, means of ruling and exercising authority. Thus Sollen emphasises the link between law and authority that creates it with a view to ruling and obtaining obedience and, finally, authorising coercion should the rule in question not be complied with. Goodhart engages the use of terms such as command and obligation, and considers that obligation is preferable to command and proposes to ‘define law as any rule of human conduct which is recognised as being obligatory’, which is antithesis to voluntary.25 But these fine terminological distinctions are beside the point, because anything that is obligatory derives from the authority of someone entitled to command it. By singling out Sein and Sollen as chief elements with which the pure theory is operating, Kelsen enhances the analytical economy of his theory, in the sense that legal theory is seen as dealing with the relationship between fact and law. Positive law regulates and applies to facts, which is the whole essence of the legal process, to the exclusion of the range of extra-legal values or interests. Validity and legal force of a legal prescription is not identical with its actual application or enforcement Sein and Sollen are basic categories of thinking (Denkmodus). They are too basic and obvious to need any further explanation. They are immediately present in the human consciousness.26 At the same time they are substantially different from each other, and coincidence between them in real life cannot be assumed across the board. These basic categories, deeply rooted in human consciousness, help explain the relationship between regulatory and enforcement functions of a positive legal order and the actual state of affairs on the ground, including the conduct and wishes of individuals who are the addressees of such legal regulation and enforcement.

23 It must be emphasised here that the meaning of these terms has been misrepresented in some pieces of analysis of Kelsen’s theory. See, e.g., H Lauterpacht, Kelsen’s Pure Science of Law, Modern Theories of Law (1933), 107, describing Sollen as ‘category of essence’, as opposed to Sein which is a ‘category of existence’. W Friedmann, Legal Theory (5th edn, 1964), 284, describes Lauterpacht as a follower of Kelsen. 24 Hauptprobleme, 3ff. 25 A Goodhart, English Law and the Moral Law (Hamlyn Lectures 1953), 19. 26 H Kelsen, Reine Rechtslehre (1934) (‘RR’), 5.

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Domesticating Kelsen

Legal norms belong to the realm of Sollen. Sollen is a broad category that encompasses anything that ought to be, including the elements of permission, entitlement or obligation.27 Hart correctly emphasises that ‘“Ought” in Kelsen’s usage is a kind of deontic variable ranging over what he terms prescriptions (or commands), permissions and authorizations.’28 If someone is legally permitted or entitled to do something, then they ought to be able to do it within the range of that permission or entitlement. In other words, Sollen is about something that ought to be, not just about things that someone ought to do. Law and contract are binding because the legal system requires they ought to be complied with and that the agency or entity which produces them has the authority to produce binding rules and prescriptions. The adoption of a legislative act or conclusion of a contract are facts, and the law links to them certain consequences that follow not from those discrete facts themselves, but from the relevance the legal system attaches to them. Law-creating fact is itself an Is but it produces an Ought, which process is accounted for by another norm, created through a different, preceding, law-creating fact which has produced another Ought to the effect that rules produced according to a certain procedure are binding. A provision in a statute that theft is punishable by so and so many years of imprisonment is not a statement of actual event; it is instead a command, a prescription as to what ought to be done in the case of theft. The fact that parliament has adopted the 1968 Theft Act amounts to an Is. The will that it expressed through its provisions produces a series of Ought. The proposition under the 1968 Theft Act that ‘[a] person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it’ (section 1(1) of the Act) is liable to imprisonment for up to seven years means that any person who carries out such conduct ought to be brought before justice and the court ought to sentence them accordingly; not that they are always in fact apprehended or so sentenced.

1.5

LAW AND OTHER NORMATIVE SYSTEMS

Legal norms are similar to ethical, moral or religious norms in the sense that they all stipulate an Ought,29 in the sense that they all stipulate what is right or wrong, what is required or prohibited.30 Moral norms are prescriptive, independent for validity from the disposition, will or action of individuals, yet RR, 4–5. HLA Hart, Kelsen’s Doctrine of the Unity of Law, in Hart, Essays in Jurisprudence and Philosophy (1984), 328. 29 Hauptprobleme, 70. 30 Larenz, 81. 27 28

The essence and basic methods of the pure theory

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moral norms have emerged through society practising them, and cannot exist unless they are widely followed by the conduct of individuals and manifest that they are generally accepted in a society. However, a legal Ought is different from other prescriptions in the following ways: it is a product of the will of a person or organ; its validity turns on its correspondence with the procedures and authorities operating under the basic norm of the legal system; and it entitles (though not necessarily obliges) another person or organ to undertake sanction or coercion with a view to enforcing that legal Ought. The coercion element is not only defined as a necessary implication of legal norms being binding norms, but also, and in order for a particular use of coercion to be described as an element of legal order, it presupposes some antecedent determination of the conduct required, of the right and wrong proclaimed by the organ constitutionally so empowered, as a precondition for coercion to be applied.31

1.6

BINDING FORCE AND APPLICATION OF LEGAL NORMS

With legal norms, not being followed does not have the same significance as it has with moral norms. A legal norm lives a life other than one related to it being followed. Application of legal norms takes place in cases when they are not followed or observed.32 Kelsen explains that ‘a single legal norm may be valid but not efficacious in a concrete instance, because as a matter of fact, it was not obeyed or applied although it ought to have been’. An ‘Ought’ expresses the idea of validity of norm.33 Hart has also expressed the similar position about the relationship between validity and efficacy of legal rules that replicates Kelsen’s.34 A legal norm’s validity does not depend on how often it is applied in practice, but on the voluntary law-creating act. Development of the law and authority of law are two different things, in their turn leading to the distinction between the historical study of the law and its dogmatic observation.35 If the legal essence of a legal norm includes its observance or application, thus if Sein and Sollen are mutually interdependent or identical, that defeats

See further Ch. 6 on the rule of law. Hauptprobleme, 49. 33 HLR, 51. 34 ‘If by “efficacy” is meant that the fact that a rule of law which requires certain behaviour is obeyed more often than not, it is plain that there is no necessary connection between the validity of any particular rule and its efficacy’, HLA Hart, Concept of Law (1961), 103 (emphasis original). 35 Hauptprobleme, 38–9. 31 32

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Domesticating Kelsen

the whole arrangement of legal order,36 because in such case the legal order would be unable to produce valid prescriptions and require obedience. Kelsen explains that legal norms are applied when they are not followed by their addressees. The effect (Wirkung) of the legal norm does not depend on the compliance with it. To the contrary, the rule begins operation when it gets violated by its addressee.37 The validity (Geltung) and effect (Wirkung) of a legal norm is not the same as its actual application (Anwendung).38 The separateness between these concepts is inevitable if the discrete meaning is to be attached to the authority that enacts the norm and to public interest that leads the authority to enact them. A legal norm is not a cause of human conduct subsumable within the norm’s scope, but provides merely a measure of judgement (Beurteilungsmaßstab) with regard to the fact that already has occurred, to ascertain whether it is a fact whose occurrence the norm has required or mandated.39 Acts contrary to law (Unrecht) are not exceptions to a legal norm, but they could be endowed with normativity only through a rule substantially different from one that makes it unlawful.40 Factual deprivation of the norm’s legal force (faktisches Ausserkraftsetzen) or destruction of a norm through factual conduct is unimaginable.41 Thus, a rule declaring X as unlawful does not admit any exceptions, any and every X is therefore unlawful. The validity and scope of a legal norm does not turn on the compliance with it, nor on its enforcement by public authorities. As the UK Supreme Court specified in R v Gul with regard to the exercise of prosecutorial discretion: Where the consent of the DPP or the Attorney General is required, their respective responsibilities are exercised for the unexceptionable purpose of ensuring that a prosecution should not be instigated nor proceed if this would not be in the public interest. However, the prosecutorial discretion was never intended, and as far as we can ascertain, it has never been suggested that it was ever intended, to assist in the interpretation of legislation which involves the creation of a criminal offence or offences. Either specific activities carried out with a particular intention or with a particular state of mind are criminal or they are not.42

38 39 40 41 42 36 37

Hauptprobleme, 50. Hauptprobleme, 49–50. Hauptprobleme, 15. Hauptprobleme, 15. Hauptprobleme, 55. Hauptprobleme, 50–1. R v Gul [2013] UKSC 64, para. 35.

The essence and basic methods of the pure theory

13

The Supreme Court takes an even more robust stance in Gul,43 to the effect that: The Crown’s reliance on prosecutorial discretion is intrinsically unattractive, as it amounts to saying that the legislature, whose primary duty is to make the law, and to do so in public, has in effect delegated to an appointee of the executive, albeit a respected and independent lawyer, the decision whether an activity should be treated as criminal for the purposes of prosecution. Such a statutory device, unless deployed very rarely indeed and only when there is no alternative, risks undermining the rule of law. It involves Parliament abdicating a significant part of its legislative function to an unelected DPP, or to the Attorney General, who, though he is accountable to Parliament, does not make open, democratically accountable decisions in the same way as Parliament. Further, such a device leaves citizens unclear as to whether or not their actions or projected actions are liable to be treated by the prosecution authorities as effectively innocent or criminal – in this case seriously criminal.

If prosecutors do not prosecute an offence courts can do little; however, the negative approach to that matter is clearly stated, and the validity of legal norms is clearly distinguished from their actual enforcement. The pure theory’s Ought is about whatever the law requires to be (i.e. to happen or to take place), not about what the law itself (its content) ought to be. It is not a matter of opinion or assessment but an imperative emanating from the constitutionally empowered authority. This is different from Hart’s take that ‘[t]he word “ought” merely reflects the presence of some standard of criticism’, which is a jurisprudential tool for assessing the substance of specific legal systems as a good system or evil system.44 This may embody some reformist outlook or agenda or, alternatively, an aspiration to disregard or disobey the existing law. In other words, it may be queried whether an Ought contained in the existing rule of law should be of a different content, or whether another Ought should be created that does not currently form part of the existing law. We might contemplate whether it is a good idea to ban cycling in the park, or whether baby prams should also be banned alongside with bicycles. Kelsen’s Ought would merely suggest that no one ought to cycle in the park, and it suggests nothing as to baby prams, because its content and scope do not extend to them. Thus, an Ought is merely about what the law actually is, not about what it should be, still less any form of criticism or desire of the improvement of the existing law. It may well be that concerns arise that the reason and rationale for which

Gul, para. 36. HLA Hart, Positivism and the Separation of Law and Morals, 71 Harvard LR (1958), 613. 43 44

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Domesticating Kelsen

cycling in the park is banned (for instance the avoidance of congestion) might also require banning baby prams, but the pure theory does not consider these concerns to be part of the object of jurisprudence. Kelsen explains that the approval or condemnation of conduct in defiance of or in compliance with a legal norm is just as separate from the norm’s own validity45 as are the social policy and interest that lead the norm’s author to adopt the norm. The legislator’s will embodied in a legal norm and any person’s reaction to that norm’s content are two different things. The legal bindingness of a norm is different from its motivating element, especially psychological motivation; motivation can follow from factors other than legal norm.46 At another level, the emphasis on the relevance of the authority and its will requires the separation of considerations and interests that lead the authority to enact a particular norm, and the content and effect of that norm thus enacted, between motive and product. Motives derive from social forces whose interests are given expression by the authority, the product derives from the will of the authority; law thus becomes an ordering mechanism. Consequently, the law is a regulator of interests and policies, not their mirror-image. If the motivation and good sense of people are placed by the jurisprudence on the same footing as the normativity of the law, or the content and binding force of a legal rule, then law is essentially constituted through practice of people, not through constitutional authority. However, the motivating imperative motivates only those motivated, the deterring effect deters only those deterred; and none of these factors explains what the rule means for those who are neither motivated nor deterred.

1.7

SOME BASIC METHODOLOGICAL TOOLS

As the regulatory function is law’s chief function, particular techniques of regulation acquire increasing relevance. The way the pure theory uses the relevant tools is driven by the inevitable place the relevant concepts and techniques possess in any legal order: concepts and techniques without which legal orders cannot function. In other words, it is not the pure theory that constructs these tools and concepts but instead the pure theory identifies the ways in which the legal order itself constructs those tools and concepts to be able to carry out its regulatory function. To begin with, the very concept of legality and illegality has nothing to do with natural reality. Instead it depends on the qualification bestowed by the

Hauptprobleme, 16. Hauptprobleme, 55, 71.

45 46

The essence and basic methods of the pure theory

15

law upon the relevant conduct. To say that an act being a murder is a natural reality would be to advocate the contradiction of law with reality in circumstances when the law considers some killings to be a murder and others not to be murder.47 Some acts of homicide could well amount to manslaughter, action in self-defence or execution of a court sentence. To say that illegality is a natural fact is to blame the law for not considering the above acts as murder and thus criticise the law. Similarly, and following the imperatives of public policy, a legal system may describe as murder an act that would constitute a mere manslaughter in the eyes of an ordinary person. Yet it would be solely the legal order’s judgement, not natural characteristics or ordinary perception of the relevant acts that would determine what their legal classification is. Definition of a person as a ‘personified unity of a set of legal norms’ relies on the fact that a man is a concept of biology and natural reality, while a person is a concept created by a legal order, a construction of juridical thinking. There is no essential difference between the concept of a natural person and that of a juridical person.48 Both are created by the law the way that the legal order considers them to be appropriate to operate. Kelsen similarly specifies that acts of juridical persons are always acts carried out by human beings. Therefore the legal order needs criteria to determine when these human beings should be seen as acting as organs of the juridical person.49 Those ‘fictions’ the legal order creates are not fictions at all, because the legal order creates them not through reflection but through the expression of will.50 Kelsen’s take on legal personality is fully in accordance with the positivist outlook of the pure theory. Positive law does not borrow or incorporate the relevant concepts from elsewhere, but it creates them itself. Jurisprudence then identifies and acknowledges those concepts, and uses them for its own jurisprudential analysis. Legal personality, even that of an individual, is not a creation of natural reality, it is a construct of law; it is moreover the product of socio-ethical judgement, the regulation as to the age at which crimes should be imputable to an individual or at which the contractual capacity should be enjoyed is by no means a mirror-image of some natural reality. It is, therefore, the reflection by the legal order of one of the several social policies and

‘“Unrecht” ist ja keine Naturtatsache. Ein Tatbestand ist “Unrecht” nur durch sein Verhältnis zur Rechtsordnung’, H Kelsen, Zur Theorie der juristischen Fiktionen. Mit besonderer Berücksichtigung von Vaihingers Philosophie des Als Ob, 1 Annalen der Philosophie (1919), 630 (‘Fiktionen’), 643. 48 GT, 93–4; see also ‘Mit der Rechtsperson wird eine natürliche Realität behauptet, die es nie und nirgends in der Wirklichkeit gibt. Das gilt in gleicher Weise für die “physische” wie für die sogenannte “juristische” Person’, Fiktionen, 637. 49 GT, 97. 50 Fiktionen, 638. 47

16

Domesticating Kelsen

opinions on this matter and the endowment of the outcomes preferred by those policies and opinions with the force of law. Another pertinent example is the meaning of fatherhood. A legal order may wish to extend the meaning of fatherhood and include both natural and legal fathers. That would be, in a way, a statement of falsehood that is not allowed to be traversed under the legal system. The law may place both natural and other fathers in a similar or identical position in terms of family and inheritance relations (which may be done by way of establishing a rebuttable presumption or otherwise equalising them in status). But would that be the same as the extension of the term ‘father’? It may be said that fatherhood is a natural reality and the law seems to require deviation from such natural reality when it creates such fiction. On the other hand, fatherhood may be said to be also a social reality to be contextualised with the institutions of family and upbringing, which factor may require the law’s refusal to be premised on biological realities. Thus, there can be two or more different extra-legal considerations dictating what shape a particular concept should have. However, it is the positive legal order that creates the relevant legal concept through the expression of its discrete and separate will derived from the law-making authority, not from extra-legal considerations themselves. The law merely makes a choice between competing concepts of fatherhood and in doing so it creates no fiction that would contradict natural reality. The law just provides the singular legal definition of fatherhood for the purposes of the legal system, as opposed to working out first a mainline definition of fatherhood that would be identical with natural fatherhood, and then specifying that in certain cases persons other than natural fathers have to be considered as fathers.51 Another principal analytical tool the pure theory operates with is imputation. One aspect of imputation relates to criminal responsibility of individuals, whether they are capable to be imputed a crime, which persons under the liability age and those of unsound mind are not. This is not a delict on the account of harm caused but on the account of having been committed by a person which the legal system considers to be capable of imputation: an adult of sound mind.52 But the more general essence of the imputation tool is the classification of the relevant acts so that we can see whether they are acts of State under the legal order. The legal order may assign different legal meanings to two or more

51 ‘Eine Fiktion im Sinne eines Widerspruches zur Wirklichkeit vollzöge sich erst dann, wenn man diesen Rechtsbegriff des,Vaters’ mit ‘der Naturtatsache des so benannten männlichen Erzeugers identifizierte’, Fiktionen, 641. 52 GT, 92.

The essence and basic methods of the pure theory

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similar or identical acts. Kelsen speaks of the concept of imputation different from that which deals with attribution of responsibility for a crime or delict. This is an imputation through the legal order bestowing a particular classification or characterisation to the acts and conduct of individuals or, in Kelsen’s own words, determining them in a special way.53 And ‘an act performed by a human being may be imputed to the state if this act is determined by the legal order in a specific way’.54 This way the legal system imputes the particular character or status to the particular activity or conduct, as opposed to imputing the violation of legal rules to a person. The distinction between the tools of fiction and imputation is that fiction deals with creation of legal concepts by the legal system the way that those legal concepts do not have a ready-made equivalent in the natural reality; while imputation deals with the legal distinction between similar or identical facts or phenomena of natural reality. In other words, two or more natural phenomena might have similar or identical natural characteristics, and the legal system may yet differentiate between them by bestowing different classifications to them. This differentiation may then be reflected down the line in terms of legal consequences attached to every such particular conduct. It seems that, of all legal techniques discussed here, imputation possesses the greatest analytical relevance, particularly in terms of enabling the legal system to regulate conflicting interests and find balance between competing values.55

1.8

CRITICS OF THE PURE THEORY

Lauterpacht has observed that Kelsen challenges all theories and that ‘[t]here is hardly a leading doctrine or conception of modern jurisprudence that [Kelsen] has not assailed’.56 Lauterpacht continued that, ‘Kelsen’s theory has been the subject of protracted controversy at almost every point, and anyone at all familiar with the voluminous anti-Kelsen literature might wonder whether there was anything to be saved from the wreck’.57 The reaction of the English legal doctrine to the pure theory has been either dismissive or partial. Brian Simpson has suggested, in a rather counter-factual manner, that ‘Kelsen does not really develop the application of his theory to

GT, 99. H Kelsen, Law, State and Justice in the Pure Theory of Law, 57 Yale Law Journal (1948), 377 (‘YLJ’), 381. 55 On which, see further Ch. 3. 56 Lauterpacht, 105–6. 57 Harris, CLJ (1977), 355. 53 54

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Domesticating Kelsen

common law’.58 This also overlooks the fact that Kelsen presented his pure theory to the English-speaking audience through the Law Quarterly Review in the mid-1930s, and his work is replete with observations with which common law thinking should be comfortable. At times, critiques of Kelsen address his theory at its margins, but not with regard to the mainline arguments of the pure theory, as exemplified by Hart’s handling of three selected issues.59 On the other hand, Kelsen has also been described as the ‘most instructive outsider’ to observe common law.60 Sir Arthur Goodhart has described Kelsen’s theory as analytical successor to the Austinian command theory, with the difference that the pure theory substitutes sanction for the power and command with which the Austinian theory operated.61 It may also appear attractive to accuse the pure theory of disregarding practical realities in its pursuit of logical coherence. Even in German jurisprudence this view has been held, with the claim that the purity of legal analysis pursues no immediate practical aims and merely aspires for logical peculiarity and methodical self-sufficiency.62 However, it is unclear why creation, content and application of legal norms can have no practical implications, why practical relevance always has to do with the relation of legal with non-legal factors or requires identity between them; and more broadly, how practical aims can be ascertained or analysed without methodological consistency. The problem with the above criticism is that it projects an insurmountable dichotomy between our use of scientific method and our ability to understand practical realities. Instead, practical realities are part of the process through which the overall system functions and are accounted for by broader factors and considerations. It is perfectly feasible and legitimate to analyse the law from a coherent scientific perspective and thus figure out its real impact on practical realities. It remains the case that English law has never been properly or systemically examined through the prism of the pure theory. Doing so, now for the first time, can help understanding of aspects of English law through the rigour, accuracy and completeness of analysis that the pure theory offers; complete AVB Simpson, Common Law and Legal Theory, Oxford Essays in Jurisprudence, Second Series (1973), 83. 59 HLA Hart, Essays in Jurisprudence and Philosophy (1984), 284ff. 60 Cotterrell, 107. 61 Goodhart, 14–15. 62 Larenz, 74–5, ‘So wie die Interessenjurisprudenz als Theorie mangelhaft, fur die Praxis aber von grossem Nutzen gewesen ist, so ist die “Reine Rechtslehre” als Theorie in hohem Masse bestechend, ihr Ertrag fur die Praxis aber gering. Das hat aber zuletzt seinen Grund wiederum in einem Mangel der Theorie’. Larenz then suggests that ‘Der “Reinen Rechtslehre” geht es um die logische Eigenart und die methodische Selbstandigkeit der Rechtswissenschaft’, ibid., 77. 58

The essence and basic methods of the pure theory

19

theory to relate to the wide empirical ground to which it has not so far been properly brought.

2. The state and the law 2.1

THE NATURE OF THE PROBLEM

The pure theory’s treatment of the relationship between the State and the law reflects its economical approach to the formation of legal concepts. Obviously the State is a complex phenomenon manifesting itself in various aspects of social life, and therefore the need for streamlining the legal methodology has arisen in order to enable legal science to pursue its own tasks in this area. Jellinek’s analytical creed was that legal concepts are meant to expose the immanent truth in relation to the world of human activity and practical reality. Legal theory only has to identify the features of the State that expose it as an undoubted reality of human activity; it is not tasked with defining the inherent rationale (An-sich) of the State but leaves it to other sciences dealing with natural and ethical bases of the State.1 Kelsen’s approach is even more restrictive in the sense that legal science ought to address only those aspects of the State that are given expression through the legal system. Consequently, Kelsen observes that ‘State as a social order must necessarily be identical with the law’, and State as a legal community is the same as the legal order.2 As d’Entreves suggests, ‘[i]f the existence of the State is conditioned by the existence of a legal system, the existence of a legal system is in turn an indication of the existence of a State’. The reduction of all law to State law is the direct consequence of the imperative conception of the law.3 This produces a dual outcome in terms of co-existence of the law and State. On the one hand, the State cannot be challenged on non-legal grounds and it is owing to this factor that it can indeed function in terms of policy making and as a social institution. On the other hand, the State can act only through law, and extra-legal acts are not valid State acts. The law thus both constitutes the State as a political institution, and delimits its scope of authority. The conceptual dichotomy between State and law is ostensibly driven by the need to understand social realities; it is undeniable that the State plays

3 1 2

G Jellinek, System der subjektiven öffentlichen Rechte (Freiburg 1891), 20. H Kelsen, General Theory of the Law and State (1940) (‘GT’), XVI. AP d’Entreves, The Notion of the State (1967), 91–2, 125. 20

The state and the law

21

an active, at times leading, part in the life of any society. But legal theory, including the pure theory, is not meant to dispute or disregard any of that. It is simply that while conceptualising legal norms as prescriptions issued by the constitutionally empowered authority, and limiting analytical focus on those norms, the pure theory could offer rather little input to clarifying the social importance of those norms. Kelsen explains that the dualism of State and law is a product of political theory and sociology. In other words, this perception of duality is something that legal theory faces, as it were, from outside. More specifically, ‘as the religious, metaphysical justification of the State became ineffective, this Legal State theory came to afford the only possible justification of the State’.4 Inevitably, this was an extra-legal justification as the original religious justification was. It referred to contemporary State interests, reason of State, or interests of social groups that have the greatest influence on legislative and other decisions made by the State. Kelsen explained the essence of that agenda thus: Traditional legal and political theory dare not renounce this doctrine, this dualism of State and law, for it performs an ideological function of a quite exceptional significance. The State must be presented as a person different from the law, in order that the law may justify the at once creative and submissive State.5

This approach focuses on the justification of institutions (as opposed to their scientific explanation), which could be put at the service of multiple political agenda, whether democratic and utilitarian, or authoritarian and totalitarian. After all, utilitarianism is but one of the approaches which emphasises that paramount importance of public and State interest, and the duality of the law and State could be used to factor in the State and public interest as interpretive factors when particular legal rules are interpreted and applied. Thus, and even if in a subconscious or unarticulated way, the use of these extra-legal categories may lead to compromising or even displacing the legal order’s own ability to provide legal solutions in particular cases that it would provide but for the involvement of those extra-legal factors and elements.6 For, if courts are servants of the State, not law, then they are inevitably servants of some extra-legal, political or ideological, interests or values. Such aspiration would also have severe implications for the independence of courts.

4 H Kelsen, The Pure Theory of Law, Part I, 50 Law Quarterly Review (1934), 474 and The Pure Theory of Law, Part II, 51 Law Quarterly Review (1935), 517 (‘LQR’), 534. 5 LQR, 534. 6 The detail of such issues arising in the process of the operation of the legal system are discussed in Chs 3 and 4.

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Domesticating Kelsen

Kelsen explains that: In rejecting a justification of the State by the law, the Pure Theory of Law does not imply that no such justification is possible. It only denies that legal science can perform that office. Indeed, it denies that it can ever be the task of legal science to justify anything. Justification implies judgment of value, and judgment of value is an affair of ethics and of politics, not, however, of pure knowledge.7

The purpose of asserting the duality of State and law can also be the thesis that the State authors the law and therefore it is not bound by it.8 State is presented as the highest form of development of societal spirit by Hegel’s philosophy, ultimately driving the ideology of the primacy of State over law. In a similar vein, Ihering suggests that the organisation of human and social purposes attains its highest point in the State.9 If that logic is followed, the State can assume some authority that is entirely or partially extra-legal or in breach of the law (for instance through the use of emergency powers or the royal prerogative) to pursue its own or ‘public’ interest even if not so authorised by the legal system (known in the pure theory as the ‘total legal order’). The duality of State and law is essentially a thesis about the primacy of State over law, of a law-free State. As Lauterpacht observed, the dualism between State and law serves the interest of prioritising State over law in the name of ‘reason of State’ or ‘public interest’ and enables the political superior to trump the law when this is conducive to their interests.10 A positivist legal theory would struggle to incorporate this dichotomy without distorting its own method and object.

2.2

ASPECTS OF THE RELATIONSHIP BETWEEN LAW, STATE AND SOCIETY

To Romans, law and State were correlative notions: ‘Whatever interpretation is to be given to the deceptively simple phrase, res publica res populi, … the State is not based on interest alone, but on law; it is intimately linked to a legal experience.’ The setting up of laws is the distinctive mark of the State. The State uses coercion only on the basis of rules and through regular procedures.11

9

LQR, 535. GT, 197. R von Ihering, Law as a Means to an End (1913), 32. 10 H Lauterpacht, Kelsen’s Pure Science of Law, Modern Theories of Law (1933), 124. 11 D’Entreves, 75–6, 83. 7 8

The state and the law

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The legal system operates in the way that does not factor in the State. True, court judgments are given in the name of the State or the Crown. But the State never figures as a distinct element in the legal process. Even if the State were to be seen to be primarily a political and social entity, the only way it could rule is through law. Different from the mere exercise of power, the State is an arrangement that purports to exercise its authority and regulate human behaviour over a particular territory by setting and enforcing binding rules and retaining the ultimate authority to authorise the rule-making by any other entity whatsoever. Terms of office of public servants or courts are set and function only through the law; any public interest or coercion could be realised through law only. This holds true however powerful the authorities are; even if the ‘sovereign’ or other political superior is free (or nearly free) from legal restrictions as Austinians would have it, still the subjects could be ruled through the arrangements of the law only, because the only way through which the sovereign could rule is through enacting laws. The pure theory requires that States with all forms of government including democracies are subject to the total legal order. Kelsen’s conclusion is that all individuals, including those serving the State are bound by the law and hence so is the State.12 In the end this is not about a generalised issue of whether the State is subject to law, but of what type of constitution the relevant State possesses (including separation of power) and how far that constitution constrains State organs in dealing with individuals. For under some constitutions individuals have more rights and a greater degree of freedom than under other constitutions. But the positivist method is compelled to accept that, whatever degree of freedom is secured to individuals, it is secured by the State acting through the law.

2.3

LAW, STATE AND THE PURE THEORY’S METHODOLOGY

Kelsen’s approach to the relationship between State and law originates from his treatment of the problem of legal personality as an issue of imputation of a particular character to the entities or activities by the legal order. Kelsen’s starting point is that the sociological concept of the State is similar to the biological concept of man, and both these concepts exist besides juridical concepts of each of them.13 Both natural and legal persons are legal persons to the extent the law confers legal personality to them. As for corporations, associations or communities, individuals are parts of these arrangements solely

GT, 198. GT, 182.

12 13

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Domesticating Kelsen

because the legal system makes them so. These arrangements are not simply masses of individuals. They are created by the legal order.14 Their status and identity is owed to the legal order. It follows from the above that the State, too, is a creation of the law and individuals belong to the State only insofar as the legal order determines their connection to it. The State can apply coercion to individuals only on condition and to the extent the legal order provides for it. In contrast to other corporations and similar entities which form partial legal orders, the State is a total legal order because it is identical with a national legal order.15 The pure theory’s identification of State with law is an analytical necessity. Legal science, like all science, has to deal with realities. In reality, all State activities are performed by individuals. It is a purely scientific conclusion that the State is real only insofar as it impacts peoples’ lives on real terms. Forces driving the State, its interests and policies, whether they are the State apparatus, interest groups or classes of society, are still composed of individuals. Anything the State does materialises owing to someone’s will, perception, interest and – crucially – someone’s actions. Now, legal science has to acknowledge this undeniable social reality, i.e. things really happening in the relevant society, but its main task is to clarify whether it is realistic to say that the relevant conduct of an individual amounts to a State conduct. It is here that Kelsen suggests the chief criterion of whether activities of those who act for or on behalf of the State can be interpreted as acts of the State, not simply as acts of the relevant individuals. These questions can be answered only by the law which is responsible for the classification of the relevant conduct as State conduct.16 Consequently, to all jurisprudential intents and purposes, the State is identical with the law. Legal method does not take cognition of the State, its interests or policies except to the extent that these have found their expression in and through the legal system. Not that the pure theory denies that State is an important socio-political phenomenon impacting various aspects of social life. It is just that legal science is not about those aspects of the State. Sociology, on the other hand, centres on the social importance of the State, and social impact of legal rules, as well as on the influence of social factors that lead to the adoption of laws. Sociology does not claim authority in understanding the content of legal norms: law as it is could not form a discrete object of sociology but only of legal science. Indeed, the phenomenon of legal

GT, 98–9. GT, 100. 16 H Kelsen, Law, State and Justice in the Pure Theory of Law, 57 Yale Law Journal (1948), 377 (‘YLJ’), 380–1. 14 15

The state and the law

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normativity can hardly be taken cognizance of from the sociological point of view. Hence, the conceptual dichotomy or duality between State and law is not an analytical or methodological requirement for any of those disciplines; such dichotomy is a product of those two disciplines speaking past each other. Obviously sociology distinguishes between State command and gang command; but that is not necessarily the same as distinguishing between valid State commands and illegitimate State commands. Alternatively, sociological reasoning might insist that the State represents public interest, possesses power greater than any other social unit, and the regulatory authority that impacts the society’s conduct. But such power is available to social classes, economic units or even gangs, and it cannot always be assumed that the State is stronger than they are. Fear, obedience, social attitude or belief or obligation or tradition are not something that individuals experience exclusively in relation to the State; they can also be experienced with regard to other social frameworks, whether formal or informal, lawful or unlawful. Thus, if sociological jurisprudence suggests widening the scope of legal science to include the prediction of individuals’ actual conduct, then it cannot exclude from its ambit their compliance with other frameworks such as gangs at the expense of the requirements of a valid legal order. Kelsen explains that a command issued in the name of State can be distinguished from other commands only by means of the valid legal order which constitutes the State. ‘It is hardly possible to define the concept of a ruler functioning as “organ of the State” without presupposing the legal order constituting the community we call State. The concept of a “ruler of the State” thus implies the idea of valid legal order.’17 The relevance, indeed necessity of using imputation as a tool of a valid legal order arises from the fact that at times distinction needs to be made between various objects, activities, persons or entities that cannot be distinguished from each other simply on the basis of their natural, or material characteristics. Kelsen explains that the State is not an object that can be apprehended by human senses. It is not a visible or tangible body belonging to the world of Sein, but merely a point of imputation (Zurechnungspunkt). Imputation is needed, among others, to distinguish human actions undertaken in the name of State from other human actions.18 Therefore, ‘[t]o impute a human action to the State, as to an invisible person, is to relate a human action as the action of a State organ to the unity of the order which stipulates that action’. An organ

GT, 186–7. H Kelsen, Hauptprobleme der Staatsrechtslehre Entwickelt aus der Lehre vom Rechtssatze (1923) (‘Hauptprobleme’), 484–5; GT, 191. 17 18

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Domesticating Kelsen

of the State is the same as an organ of the law.19 Human action is imputed to the State ‘when the human action in question corresponds in a specific way to the presupposed legal order’. Legal order defines a particular action which, when carried out by an individual, will amount to the act of the State, whether that is punishment for a crime, fine for failure to pay tax, or the very legislative activity.20 A State organ in a sociological sense refers to the part of the whole, which is meant to represent the interests of the whole, i.e. the State. State organ in the legal sense exists because the law imputes the conduct of an individual or individuals to an entity other than them.21 More so, as Kelsen says that the unity of the legal order brings unity to the multitude of acts of commanding issued by multiple authorities and officials.22 The key factor is whether those commands derive from valid legal order, i.e. whether the imputation by that order to them of their legal status and character takes place. The State is not the same as society. The latter provides merely one element of the State, namely its people, and will of the people is not the same as will of the State.23 People of the society have no legal capacity without either forming a State or expressing their will through State organs. Legal science cannot admit parallelism of State and people as separate organisations or units, State will and popular will. Popular will is only a sociological phenomenon; its legal expression is possible only through the State.24 Population, in the sense of persons entitled to vote, is a State organ for limited purposes to elect legislature, and this capacity is imputed to it by the legal order, but the law imputes such status of State organ only to those who it allows to participate in voting, not to the entire population or nation. This was even more acutely obvious at some earlier stages of history; but even in modern democracies the number of those participating in elections does not necessarily express the authentic will of the population or nation. Part of the nation is not the same as the nation as a whole.25 Thus, for legal purposes the State population is not a social or natural reality, but a purely legal construct which operates independently of the society and population as natural real GT, 191–2. GT, 192. 21 Hauptprobleme, 478, 482. 22 GT, 187. 23 Hauptprobleme, 165. 24 Hauptprobleme, 99–100. 25 Hauptprobleme, 484: Kelsen queries ‘was die juristische Rechtfertigung dafür sein kann, die verhältnismässig kleine Gruppe der Wähler oder Wahlberechtigten (resp. -verpflichteten) mit dem ganzen Volke zu identifizieren? Allein, ein Rechtsgrund für diese Zurechnung der Handlungen eines Teiles des Volkes zum ganzen, als einhein gedachten, ist nicht zu finden.’ 19 20

The state and the law

27

ities. The constitution attaches the relevant consequences not to the will of the nation as a whole but to the will of those who choose to vote, and then on conditions specified under the particular electoral system. Moreover in the UK context specifically, the constitution is not premised on any general societal will. Instead any government of the day that can carry through pretty much any legislation it is keen on, has the backing of the part of society’s will only, which at times is less than half of the population. Therefore, what society desires or aspires to is not invariably the same as what the State wills. As Dicey has put it, ‘the obvious conclusion suggests itself that the public opinion which governs a country is the opinion of the sovereign, whether the sovereign be a monarch, an aristocracy, or the mass of the people’.26 An emphasis is here placed on the will and society of the sovereign as a State organ, as opposed to the will and opinion of the society as such. It seems that State will and societal will find themselves in a mutual analytical antagonism and cannot cohabit the same space. If the society’s will in its pure form was responsible for creating the law, then the State will could not operate independently. If the State will has separate identity it becomes less dependent on the will of society and more dependent on the patterns of the constitution. Constructing or imagining the will of the society as the common social consciousness of the entire society as opposed to the will of particular individuals or their groups, amounts to imagining the similarity of the societal consciousness with human consciousness in terms of forming aspirations and judgements. With regard to the State will, the pure theory proposes a discretely new concept of will which is not a psychological will, but one discretely formed within and emanating from the State as a legal construct. Kelsen explains that the will of a person or society is psychological will, driven by aspiration and desire, and has to do with the process of willing. Only humans can have psychological will. State will is not the psychological will of its population. Moreover, State will is not the psychological will, but it is entirely a product of legal construction.27 Juridical will of the State cannot be identified through abstraction or fiction, but only through independent legal cognition of the legal framework.28 At times the real unity of the State will is purported to be explained by ‘collective interest’. However, ‘in reality the population of a State is divided into various interest groups which are more or less opposed to each other. The ideology of a collective State interest is used to conceal this unavoidable

AV Dicey, Law and Public Opinion in England (1926), 10. Hauptprobleme, 172. 28 Hauptprobleme, 178. 26 27

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conflict of interests. To call that interest which is expressed in the legal order the interest of all is a fiction even when a legal order represents a compromise between the interests of the most important groups.’ If a legal order embodied genuine collective interest, then it would not need any coercion at its disposal and could instead do with voluntary obedience.29 Indeed, the principal reason why various constitutions arrange that decisions taken by particular officials, or assemblies by the stipulated majority should be binding, and represent as it were the will of people and populations, is that population and society accepts that it regularly happens that it is not able to work out genuinely what could be accurately described as its authentic will; the legal order is necessary to preserve social order and co-existence of its diverse elements. Even liberal or democratic political systems based on popular representation operate on that premise. Kelsen alludes to Rousseau’s concept of ‘general will’ identified with the majority whose decision binds the rest,30 and explains that the majority decision is not psychologically the same as the united will of the society, and even within the majority the aims of those consenting to a particular law, decision or policy may vary.31 Parliament represents interests of various parts and groups of the society; but it is the organ of the State, which means that its existence derives from the law only; hence all its powers are determined and delimited by the law. Kelsen is sympathetic to the simple majority decision-making, which underlies the approach that a social order should be in accordance with the will of as many of its subjects as possible. Most pertinently, Kelsen suggests that ‘since political freedom means agreement between the individual will and the collective will expressed in the social order, it is the principle of simple majority which secures the highest degree of political freedom that is possible within society’. If the change in legal order could be prevented by the minority, then the number of subjects in discordance with the legal order would be greater than of those content with it.32 This may appear as a noteworthy marriage of convenience between utilitarianism and positivism. This is further in accordance with the utilitarian perception of the constitution and political system, so that the latter enables delivering the outcomes that serve the greatest happiness of the greatest number. For, if the will of a simple majority cannot carry the day, then the position that obtains definitely cannot satisfy the greatest number. Instead, the minority (however large) would be happier than the majority. The

31 32 29 30

GT, 185. YLJ, 387. Hauptprobleme, 169–70. GT, 286–7.

The state and the law

29

countervailing consideration is that of human dignity and individual rights that should not be easily trumped by the simple majority, if at all. This shows how particular modes of legislative decision-making express particular ideological aspiration, expressive of utilitarianism or human dignity. As such, the idea of constitution and constitutional majority (as distinct from simple majority) is incompatible with the requirements of utilitarianism. Or otherwise, the constitution sets the allowable scope within which utilitarian considerations could operate within the legal system. Will of the State is not the same as will of any social community. Society possesses no separate legal existence, nor is its spatial scope necessarily the same as that of the State. Society can only have psychological will, not legal will.33 Factors building the societal spiritual unity do not have to cover the entirety of the State’s population nor do they have to overlap with territorial boundaries of the State, and can involve elements from abroad.34 A uniform society identical with the population of the State does not exist.35 Society and societal will can be seen as organic phenomena, as the process of societal will-formation is comparable to an individual’s will-formation process. But even on sociological terms, the presumption of unity and coherence of societal will cannot always hold the ground. The State is not identical with physical human beings or their collectivities that could form their will based on their interest, attitude or consciousness. The fact that the State has willed something means no more than that the State has issued a particular enactment or decreed something. This is the only way in which the State can express its will. Legally speaking, the State has no other will. Wishes, desires, aspirations, preferences associated with various policies do not interest the positivist legal science until such point as they get reflected in rules of the law. Only the legal method can postulate the meaning of juridical will; psychologists can cognise that every single person forms a will along particular preferences, whatever social or political considerations may be driving them; sociologists can account for the class or group will produced through the commonality of political or economic interest that brings particular people together; however, neither sociologist nor psychologist has any means or tools to account for the single and unitary will of the collective organ or assembly itself or certify that it is real; that will is entirely a construct of the legal method. The State simply cannot will that a particular policy should be pursued or particular social aims should be attained. Those aims and policies can indeed

Hauptprobleme, 165, 184. Hauptprobleme, 165. 35 Hauptprobleme, 476. 33 34

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drive State organs to make their own decisions. But those decisions themselves are part of the law and this is the only thing that State organs could actually will. Aims and policies are given legal effect only to the extent the legal enactments reflect them.36 Kelsen explains that: To pronounce the will of the State a psychological or sociological reality is to hypostatise an abstraction into a real agency, that is to ascribe to a normative relation between individuals substantial or personal character. This is, as we pointed out, a typical tendency of primitive thinking; and political thinking has, to a great extent, a primitive character.37

Kelsen addresses a theoretical argument that the State can have a single and unitary will,38 regardless of the involvement of the various State organs at various stages of the formation of such will. Presumably, on this position, whenever the pertinent constitutional requirements are met, the State will is deemed to have been expressed. However, the will of the State can be expressed not simply by any particular organ such as parliament, but only on the condition provided for under the law and the constitution. Kelsen gives an example of a State willing something through the parliamentary vote but not willing the same thing through the refusal of the head of State to endorse it. The emergence of the State therefore exclusively depends on the legal construct through which the functions of various organs of the State are as a whole imputed to the State.39 The State exists only through the legal system and its will can be expressed only on the conditions laid down under that legal system. If the State is the totality of its organs, then every State organ has the scope and amount of authority that is determined by the law not only with regard to that particular organ, but also with regard to the relationship of that organ to other organs of the State. For instance, the UK parliament enacts legislation that is implemented the way it is interpreted by courts, and hence a clearer picture obtains as to how the will of the State is formed and expressed.40 Indeed, one reason why the pure theory provides the legal concept of a State is to rationalise the basis of law-making differently from the Austinian perception of the legislative sovereign as a single organ,41 because the State, whose organ the alleged ‘sovereign’ person

See Ch. 4 on statutory interpretation. GT, 185. 38 Hauptprobleme, 172. 39 Hauptprobleme, 474. 40 On statutory interpretation see Ch. 4. 41 H Kelsen, The Pure Theory of Law and Analytical Jurisprudence, 55 Harvard Law Review (1941), 44 (‘HLR’), 64–5. 36 37

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or body forms, is identical with the total legal order of which that person or body is only one element. The above outcome regarding the will of the State impacts the relevance of the concept of the purpose of the State (Staatszweck). If societal purposes do not have any direct bearing on the formation of the State will, they do not determine State purposes either, and the State’s purpose is merely to uphold the State legal order; this is the legal purpose of the State, as opposed to its philosophical, ethical, political, economic or social purposes; asserting that the State is there to serve and represent interests of the society indeed says little as to how the State as legal framework functions and how it forms its own will. Legal science thus constructs State as a discrete object to be studied through the exclusive use of the legal, jurisprudential, model, as opposed to borrowing methods from socio-political sciences or making its own methods dependent on background assumptions to be provided by non-legal disciplines. From the standpoint other than the pure positivist legal method, as Ihering explains: there is one purpose which surpasses all the rest and which was directed to it from the very beginning, nay, called the State into being, and which never can be wanting. This is the purpose of law, the formation and securing of law. All other problems of the State recede into the second place in comparison with this one; neither do they emerge historically until this first and most essential one is settled; … the cultivation of law is the essential function of the life of the State.42

Raz suggests that, ‘[b]ecause Kelsen lacks the concept of the state as a political system, he fails to account for the identity of a legal system. He is driven to rely on constitutional continuity as a sole mark of identity, disregarding the fact that new States can be created and new legal systems established without any break in the constitutional continuity taking place. A theory of law must be based, at least partly, on a theory of state, and denying this has been one of Kelsen’s gravest mistakes.43 Kelsen does not disregard the fact that new States can be created and new legal systems can be established, but that is dealt with as revolution and efficacy, replacement of a legal order’s basic norm. Moreover, the thesis of Raz that ‘new states can be created and new legal systems established without any break in the constitutional continuity taking place’ amounts to claiming the impossible.44 Either way, however, a discrete concept of State has no added value for determining the identity of legal systems, because the creation

Ihering, 231. J Raz, The Identity of Legal Systems, 59 California Law Review (1971), 795 at 813. 44 See further Ch. 5 for discussion. 42 43

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of a new legal system is anyway involved in every such case regardless of whether a new State is being created or not, and this is what forms the central object of inquiry of legal science.

2.4

THE OUTCOME

The outcome that follows is the integrated and singular construct of the State and law, which determines the will and purpose of the State, and which enables the study of the State according to a coherent positivist legal method. The State is no less abstract and no more tangible than law, and neither of them has any physical or material existence. If State and law are not identical, then either legal science eschews cognising some aspects of State or law cannot be a unity in the sense of regulating the State in its entirety. Neither of these outcomes could be satisfactory to any coherent positivist theory of law. Curious as this may sound, eliminating the State from the legal discourse is the best way to discern its legal meaning.

3. Law and its ‘others’: natural law, morality and social policy 3.1

THE PURE THEORY’S ‘OTHERS’

Any assessment of the merit or demerit of any rule of positive law is premised on the existence and approval of some alternative extra-legal standard of judgement in relation to which the relevant rule of positive law ought to be judged. Hart emphasises the distinction between utilitarians such as Bentham and Austin who distinguish between the law as it is and as it ought to be, and natural lawyers who blur this rather important distinction.1 Bentham openly proposed studying law as it should be not as it is, to censure law rather than engage in its exposition, which he tries to sell as a new legal science.2 Bentham’s view was that law as a system of rules laid down by constitutionally empowered authorities is a tool for carrying out social reforms in the public interest. Law was thus seen as an instrument of change. Austin’s view was that law is valid regardless of its merit or demerit, which position could be seen both as viewing law’s essence as separate from extra-legal considerations, and as viewing law as a tool to deliver social change, whether the law’s addressees approve of it or not. In addition, the contrast between the positivist and the utilitarian reasoning also leads to a query of whether the body of the law incorporates certain extra-legal elements relating to social and public interest. For the pure theory, such enquiry is redundant, irrelevant, and meaningless, because the pure theory does not consider that the assessment, approval or disapproval of a legal system on non-legal (ethical, social or other) grounds is part of the task of the legal theory. For the pure theory, the conclusion that the legal method enables the cognition of legally binding norms of positive law only, not ones deriving from natural law, morality or ethics, is a legal or jurisprudential conclusion following from the nature of the legal system and its difference from other normative HLA Hart, Positivism and the Separation of Law and Morals, 71 Harvard LR (1958), 594. 2 CJ Friedrich, The Philosophy of Law in Historical Perspective (1958), 95. 1

33

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systems. This is not a conclusion about the human perception of various normative systems, whether their commands are binding or not. A human being may be constrained by the need to comply with binding norms of the law, but he or she may likewise feel the need to comply with moral and ethical norms. Motivations to comply with the law can vary and include the favourable attitude or sympathy towards the existing legal position under the relevant legal order. The binding force of the law is, however, entirely external to the feeling or attitude of the person which complies with or disobeys the law. The pure theory does not insist that the conduct or attitude of a human being should be motivated only by the law. But within the realm of the legal system whose binding prescriptions are backed up by coercion, their conduct is assessed only by reference to the law. Kelsen was obviously and openly opposed to the natural law tradition. There may be a difference between what the natural law theory itself professes to be and what, on a closer and harder analytical look, it actually is. The principal difference here is about some measure of good and evil that the natural law theory considers to have some discrete natural, discrete or transcendent legitimacy of the kind that justifies characterising it as part of the law. Apart from the fact that natural law does not derive from an established legal authority, and despite the fact that the natural law theory is one of the oldest theories that has purported to rationalise the essence of legal systems, obligations and authority, the issue of whatever is required by nature is still, in essence, a matter of someone’s opinion, whether of an individual, group or class of individuals, or society at large. Such opinion may be persuasive, but it has no greater legal force than one that is opposed to it. In reality, moreover, the actual societal thinking of those to whom the law applies is not very likely to view the acceptable moral or ethical principles as derived from some natural force. It is more likely that these will be seen to be aspects of religion, morality, tradition, social ethics or social habits. Therefore, Kelsen is entirely correct when he views the natural law theory as expressive of some social interest or policy preference. His unitary view of all these phenomena is further reinforced by the fact that ‘[e]very political ideology has its roots in volition, not in cognition; in the emotional, not the rational element of our consciousness; it arises from certain interests, or, rather, from interests other than the interest in the truth’. There is a conflict between the fundamental ideal of science, which is truth, and fundamental ideal of politics, which is justice.3 Thus, from the positivist perspective of the pure theory, natural law is merely a variation of broader phenomena that are driven by interest, utility or

3

H Kelsen, General Theory of the Law and State (1940) (‘GT’), xvi.

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aspiration. Much as natural law appeals to principles or values that it considers to be more transcendent and less whim-driven, to positive law, natural law’s reasoning is just as inimical, and has just as little authority as any presentation of any person’s or social group’s interest, wish, opinion, or aspiration. For, positive law is the only system of norms whose content can be objectively ascertained and traced back to the will of the constitutionally empowered authority to enact that law. It is valid not because of someone’s preference, but owing to the objectively ascertainable will of law-making authorities. It is in the nature of the law that it possesses regulatory function with regard to the conduct of individuals and other entities, imposing limitations on human freedom of action. Positive law regulates such conduct regardless of the will and interest of those whom it addresses. Consequently, positive law cannot cohabit the same space as natural law, whichever version of natural is understood or presented. For, positive law cannot bind and regulate human conduct if its binding force and regulatory power were to further depend on the attitude, interest or aspiration of those whose conduct its norms address. An individual cannot at one time be obliged to observe a norm of positive law and free to disregard it if natural law so requires. It may be that by a natural law or ethical principle a particular rule of positive law is unjust, unsound or oppressive and hence ought not to be enforced. Positive law cannot admit the legal force of such principles, because it would in such case contain the justification of its own disobedience, or even the overthrow or disruption of the legal system. It is not unheard of that a legal order considered unjust and oppressive is overthrown and replaced by a different one, more acceptable to the society at the relevant point of time. But the pure theory considers that to be a replacement of one legal order by another, and not on terms the older legal order itself foresaw.4 For, no legal system whatsoever can provide for the terms of its own disobedience, abolition or destruction. The pure theory’s categorical and unconditional prioritisation of positivism as the sole rationalisation of the binding force of law and legal obligation is premised on the thesis that restrictions on the freedom of human conduct emanate solely from the State, which is identical with the (positive) law and from no other source, and coercion to individuals can be applied on the basis of the law enacted and promulgated by the same State. By the reverse token, as the State identical with positive law is not bound by any version of natural law, there are no absolute limits on the degree and extent to which the State can restrain and regulate the freedom of human conduct. One part of this construct exposes the relevance of positive law in preserving human freedom and autonomy on terms of the rule of law, while another part articulates the

4

See further Ch. 5.

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Domesticating Kelsen

possibility of substantial, or even drastic, State inroads into the realm of human freedom, right up to various patterns of totalitarianism. Indeed both of such orders are legal orders. A generalised theoretical conclusion thus follows that, effectively, human beings are at the disposal of the State. Which of these two possibilities materialise in the pertinent legal system depends solely on the positive law constitution and the terms of governance it lays down for the relevant society. The pure theory’s genuine doctrinal ‘other’ is constituted by utilitarianism and its variations. Bentham’s creed requires the adaptation of laws ‘to the circumstances of society, to the wants of men, and to the promotion of human happiness’.5 This outlook as to how law has to develop, what targets it has to deliver on, how the legal system ought to be used to deliver these results, is broadly the underlying precept of interest-based theories. Utilitarianism tries to bypass and subvert this distinction by presenting us with the ‘infallible guide’ as to what law should be, to guide or shadow the legislator’s autonomous law-making power. However, the representation of interests is still at the core of the utilitarian argument. Bentham explains that ‘[t]he interest of the community is one of the most general expressions that can occur in the phraseology of morals’; it is ‘the sum of the interests of the several members who compose [the community]’.6 Bentham focuses on the self-interest of individuals and the ‘identification of interests’.7 The thesis of the ‘greatest happiness of the greatest number’, while seemingly close to general or transcendent societal interest, is still a way of prioritising some interests over others; its quantitative prevalence over countervailing interests does not lead to its qualitative difference from them. As such, utility is always someone’s utility either interest-wise or perception-wise and, therefore, it inevitably relies on social interests of particular sectors in the society. Sir Frederick Pollock has observed that, in the natural law thinking of early periods, ‘[w]e find even the language of modern utilitarianism anticipated for communis utilitas is a quite current term’. Furthermore, ‘[i]f Bentham had known what the Law of Nature was really like in the Middle Ages, he would have had to speak of it with more respect’. And, ‘utilitarianism is just as much a system of natural law as any other dogmatic system of ethics, or politics’.8 And they both are matters of opinion. Seeing what the pure theory was initially reacting to can also help understanding of its current relevance in capturing the essence of the legislative Cf. AV Dicey, Law and Public Opinion in England (1926), 126. J Bentham, Principles of Morals and Legislation (Wordsworth 2001), 88. 7 Friedrich, 96. 8 F Pollock, The History of the Law of Nature: A Preliminary Study, 1 Columbia LR (1901), 22. 5 6

Natural law, morality and social policy

37

process in modern times. The pure theory was, in a way, a reaction to previous doctrinal approaches that insufficiently emphasised positivism. According to Jellinek, law is nothing but ethical minimum, a condition for the survival of the society, securing minimum conditions for the survival of ethical norms, minimum of moral life and preserving moral foundations of society.9 Jellinek’s overall theory of law is preponderantly positivistic, but it does not draw conclusions from principles that positivist legal science adheres to.10 The conception of law as ‘ethical minimum’ indeed compromises the positivist understanding of legal systems. According to Jellinek, any kind of law-making by a tyrant or a modern legislature on any subject-matter is meant to conserve the object that is held to be socially valuable.11 It may be right as an outcome that, at the end of the day, legal systems can be seen to embody the minimum of ethical, social and moral values prioritised in the relevant society. But it is a qualitatively different question whether the validity of legal rules is owed to those values directly and as such. The key legal question is not about what object legal rules serve or conserve but what they require from individuals or from public authorities. Bentham’s utilitarianism finds some parallel in the teachings of Rudolf von Ihering, who mirrors Bentham’s opposition to individual rights by propagating that law is a product of the primacy of social interest over that of an individual; the primacy of social egoism over individual egoism. ‘The law has social egoism as its ally, individual egoism as its opponent. The former pursues the common interest, the latter, the individual interest. If the two interests were mutually exclusive, so that every one had the choice of desiring either the interests of society or his own, his choice would not be doubtful.’12 The individual is seen here as a carrier of social interest too; but that does not radically differ from the original utilitarian approach that the will and interest of the majority should be given preference at the expense of those of the minority. With Ihering, the social interest seems to be something quite obvious to everyone, so that its merit could hardly be in dispute. Ihering suggests that ‘everything found on the ground of the law was called into life by a purpose, and exists to realize some purpose … To look for it is the highest problem of jurisprudence, whether in the dogma of law or its history.’13 Ihering identifies the concept of secure conditions of human life, being the sum of material and non-material values and benefits, as the chief purpose of the 9 G Jellinek, Die Sozialethische Bedeutung von Recht, Unrecht und Strafe (Wien 1878), 42. 10 H Kelsen, Introduction to the Problems of Legal Theory (1992) (‘PLT’), 22. 11 Jellinek (1878), 43–4. 12 R von Ihering, Law as a Means to an End (1913), 462 (emphasis original). 13 Ihering, 330.

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law.14 Ihering is also similar to utilitarians as he singles out prevailing social interests and regards deviants as unacceptable.15 To Ihering, justification of utilitarianism or the primacy of collective or public interest over individual interest ‘lies in the point of view that the law is not an end in itself, but only a means to an end … Law exists for the sake of society, not society for the sake of law. Hence, it follows that when in exceptional cases, as in those above mentioned, the relations are such that the government finds itself facing the alternatives of sacrificing either the law or society, it is not merely empowered, but in duty bound, to sacrifice law and save society.’16 On that view, the law is not merely expressive of some social interests, but it is also subordinate to other social interests which its content does not reflect. Ihering’s egoist ‘wants the law in so far as it limits others in his interest, he does not want it in so far as it limits him in the interest of others. He wants the advantageous consequences but not the disadvantageous ones’17 is essentially a way to demystify the utilitarian model and not to regard it as infallible. Ihering suggests that: Public spirit is merely a refined form of egoism; the egoism of the man who sees far enough to know that the foundations of his well-being rest not only upon the conditions immediately connected with his own person, but also on those which he shares with others. Public spirit is egoism directed to that which we have in common with others (common interests as distinguished from particular interests).18

Ihering says ‘[i]t is the right as well as the duty of society to set its own interests against those of individual egoism. But the interests of society are directed to that which suits not only one particular person but all; which enables all people to subsist; and this is, as has already been remarked above, nothing else than justice. Justice is above freedom.’19 Justice thus becomes a supreme public interest, in its turn giving concrete expression to the concept of public utility, capable of providing to the legislator more specific guidance as to exercise of its sovereign and legislative authority. One significant difference from the mainline utilitarianism is that, for Ihering, State and law means humanisation, especially with regard to punishments; while the original version of utilitarianism, if carried logically down the line, approves anything that the ‘greatest number’ might desire, setting no 16 17 18 19 14 15

Ihering, 330–2. Ihering, 338. Ihering, 316–17. Ihering, 344. Ihering, 165 (emphasis omitted). Ihering, 106 (emphasis omitted).

Natural law, morality and social policy

39

structural limit to that. As Ihering explains, the law prohibits and prosecutes for what society may lynch the offender. Ihering comes closer to Kelsen’s side when saying that ‘[t]he organization of the criminal law by the State constitutes no less a benefit for the criminal than for society ... the indulgence which it shows the criminal is bought at the expense of the State.’20 Law is thus seen as a regulator of interests not as mere mirror-image of them. Otherwise, there is no cardinal difference between Bentham’s legislature acting in the social interest and Ihering’s law throwing power on the side of the right. Another example is the allusion Volksgeist and its more recent version, Duguit’s ‘social solidarity’ linking the authority of law to its mere re-statement of the real or objective law antecedently created by such social solidarity.21 Both these doctrines are variants of the natural law doctrine with its characteristic ‘true’ law behind positive law.22 The pure theory’s own input is to de-mystify the social consciousness or Volksgeist as transcendent phenomena, and instead emphasise particular social or political interests as their constituent elements. Roscoe Pound takes a perspective reverse to Ihering’s by suggesting that: the juristic thinking of the present must start from the proposition that individual interests are to be secured by law because and to the extent they are social interests. There is a social interest in securing individual interests so far as securing them conduces to general security, security of institutions, and general moral and social life of individuals. Hence while individual interests are one thing and social interests another, the law, which is a social institution, really secures individual interests because of a social interest in so doing.23

Pound’s utilitarian position is obvious, but the way he takes it further raises further issues as to the relationship between public interest and the nature of the process through which it is given effect. Pound suggests that ‘no individual may claim to be secured in an interest that conflicts with any social interest unless he can show some countervailing social interest in so securing it – some social interest to outweigh that with which his individual interest conflicts’.24 This suggestion is framed in rather process-related terms, so that arguably balancing public against private interest relates not just to the science of legislation but to the actual process through which law is applied to facts. Hence, and particularly in common law systems, the interest-balancing exercise Ihering, 461. GT, 126–7. 22 GT, 127. 23 R Pound, Social Problems and the Courts, 18 American Journal of Sociology (1912), 331, at 340. 24 Ibid. 341. 20 21

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moves beyond the legislative process and invades the area of administration and adjudication. Decisions on these matters are taken by judges and administrators alongside with the legislator. As we shall see, the pure theory contains nothing to object to this.25 Similar to Ihering, Hart gives an example of interest-balancing in the context of sentencing in criminal proceedings, dealing with interests of all those involved and of the society at large: Here the factors to be weighed seem clearly to be moral factors: society must not be exposed to wanton attack; too much misery must not be inflicted on either the victim or his dependants; efforts must be made to enable him to lead a better life and regain a position in the society whose laws he has violated. To a judge striking the balance among these claims, with all the discretion and perplexities involved, his task seems as plain an example of the exercise of moral judgment as could be.26

However in this context the legal order endows the judge to exercise his judgement in determining the legal position from among various available options. Individual legal philosophers may have represented various socio-political or ethical agendas. However, the main elements around which these other theories revolve, and with regard to which the pure theory disagrees, relate to the relationship between the law and other social factors, and the role of lawyers and public officials in ensuring the right equilibrium between those legal and non-legal factors in the process of law-making, as well as of the interpretation and enforcement of the law. These non-legal factors may relate to values such as justice, ethics, natural law, or social tradition and social interest. These theories vary in assessing the relevance of positive law and legislative will behind it; the historical school and the sociology of law view them as auxiliary to some other mainline normative process (whether various versions of natural law, Volksgeist, social solidarity, or ‘objective law’) to which the positive law merely attends; while various versions of utilitarianism accept the fully fledged relevance of positive law as a tool serving the dictates of public utility. Thus, law is seen as a reflection or expression of some other extra-legal system of norms, beliefs or traditions; a legal system is seen as a servant to a higher societal purpose, or as an expression of established social values or traditions. Such perception about how far the legal system receives and represents those values and interests is antithetical to the positivist theory of the law. In a way, this is a disagreement as to the proper object of jurisprudence, about what legal science should study: the law as expressive and representative of

See further Ch. 4. Hart, Harvard LR, 613.

25 26

Natural law, morality and social policy

41

some extra-legal value or interest, or the law as a discrete system of binding norms that operates according to its own systemic requirements. To summarise, the pure theory’s real ‘others’ are the interest-based theories, because those theories view law as expressive of or serving some other extra-legal value or interest. These theories emphasise the legal and normative value of particular elements and factors on the basis other than their derivation from the ordinary bases of positive law-making recognised by the relevant system of positive law. The common feature of interest-driven theories is that they focus on legal systems as tools to advance particular conceptions of socio-political interest, utility and agenda; not as autonomous organisms that operate according to their own systemic requirements. The implication is that the law should be studied as a tool for or embodiment of something else, not be addressed as the law as such. The pure theory’s unitary view towards interest-based theories is entirely justified. The substantial differences between those theories notwithstanding, they all look the same in the mirror of positive law, as they all advance the ideas as to the legal standing of certain factors, ideas and elements which from the positivist perspective cannot be characterised as part of the law.

3.2

THE PURE THEORY AND THE LAW’S ‘OTHERS’

The pure theory’s own starting point is that situations in which conduct decreed by the legal order corresponds to that which people desire anyway is rare.27 The emphasis of the pure theory is on the fundamental importance of reward and retribution to any social ordering,28 leading to conceptualising the discrete importance of the positive legal order that addresses individuals through those rewards and punishments solely on the legal system’s judgement, not on any social judgement If a statement that a certain conduct does or does not correspond to positive law is called a judgement of value, it should be considered an objective judgement of value that can be verified objectively, to be distinguished from subjective judgements of value that refer to feelings of persons.29 Then ‘the pure theory of law simply declares itself incompetent to answer either the question whether a given law is just or not, or the more fundamental question of what constitutes justice’. This question does not lend itself to scientific clarification at all, because ‘[t]o say that a social order is just means that it regulates the behaviour of men in a way satisfactory to all, that is to say, so that all men

GT, 15. GT, 15. 29 GT, 14. 27 28

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find their happiness in it’.30 Consequently, ‘[j]ustice is an irrational ideal … Regarded from the point of view of rational cognition, there are only interests, and hence conflicts of interests. Their solution can be brought about by an order that either satisfies one interest at the expense of the other, or seeks to achieve a compromise between opposing interests … This order is the positive law.’31 Kelsen further comments that ‘[n]orms of morals, of justice, of social value-judgments – such as ordinarily appear in terms like the “common good,” “state interest,” progress, etc. As to the validity and determination of such, the positive law has nothing to say except negatively, namely, that such considerations are not matter of positive law.’32 The pure theory focuses on the real law, not ideal law which is the goal of politics.33 The reality of the law means simply its real enactment by the constitutionally empowered authorities. Positivist jurisprudence should not be dealing with such extra-legal matters at all. For, such ideological questions cannot be resolved the same way as scientific questions can be resolved. The matter of which value is superior and which is inferior: cannot be answered in the same way as the question whether iron is heavier than water or water heavier than wood. This latter question can be resolved by experience in a rational scientific way, but the question as to the highest value in the subjective sense of the term can be decided only emotionally, by the feelings or the wishes of the deciding subject. One subject may be led by his emotions to prefer personal freedom; another, social security; one, the welfare of the single individual; the other, the welfare of the whole nation. By no rational consideration can it be proved that the one is right or the other wrong.34

From the positivist perspective, justice means merely the consistent, not selective, application of a rule of positive law to cases that fall within that rule’s ambit.35 Similarly, Kelsen opposes Jellinek’s thesis that a simple formal conception of rights is impossible and they have to include content of life rela-

30 H Kelsen, The Pure Theory of Law and Analytical Jurisprudence, 55 Harvard Law Review (1941), 44 (‘HLR’), 45. 31 GT, 13; HLR, 48–9. 32 H Kelsen, The Pure Theory of Law, Part I, 50 Law Quarterly Review (1934), 474 and The Pure Theory of Law, Part II, 51 Law Quarterly Review (1935), 517 (‘LQR’), 527. 33 GT, XVI. 34 H Kelsen, The Natural-Law Doctrine before the Tribunal of Science, 2 Western Political Quarterly (1949), 481 (‘WPQ’), 484. 35 GT, 14.

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tions.36 Rights arising from legal rules can be asserted as such, and their ability to be so asserted is not dependent on proving the interest underlying the rule or right in question. The notion of interest is utterly unimportant for the juridical construction of a subjective right.37 Kelsen critically engages Ihering’s thesis that legal concepts and legal rights are expressions of particular interest and purpose that they embody and protect; especially that concept of a right includes substantial purpose such as advantage or profit to be protected by law; and formal element which is merely a tool for such protection.38 It is in that context that Kelsen suggests jurisprudence has to cognise merely the form.39 It can be that the distinction between substance and form can be dependent on context. The rule is a form through which substantive interest or purpose is protected; however, the norm itself has its own substance when it purports to protect that interest. Kelsen’s main criticism of the jurisprudence of interests (Interessenjurisprudenz) relates to its natural law outlook and its assumption that legal rules are there to protect interests. However, the function of law is to restrain as much as protect interests of the relevant entities.40 This is even more obvious as societies are hardly ever guided by a coherent and uniform pattern of social interest: Common interests may be the reason for establishing a community; but not all individuals who have interests in common form a community; and there are communities of individuals that are not at all based on a common interest of these individuals, communities which comprise individuals of quite opposite interests … the people of a state is, with respect to the real interests of the individuals, not necessarily a homogeneous body, that the people is almost always divided into antagonistic groups of interest, that there is not, and there never was, a state within which there is not a greater or smaller number of individuals whose interests – as they rightly or wrongly understand them – are in direct opposition to those on which this community is established or which this community is realizing.41

The distinction between rights and interests or social values can be related to the process of the establishment of a legal order. Kelsen shows the commonality of approaches of continental and English thinking to the effect that legal orders do not create rights but merely protect some fundamental rights 36 H Kelsen, Hauptprobleme der Staatsrechtslehre Entwickelt aus der Lehre vom Rechtssatze (1923) (‘Hauptprobleme’), 93–4. 37 Hauptprobleme, 574. 38 Hauptprobleme, 89. 39 Hauptprobleme, 92. 40 Hauptprobleme, 572–3. 41 H Kelsen, Law, State and Justice in the Pure Theory of Law, 57 Yale Law Journal (1948), 377 (‘YLJ’), 379–80.

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individuals inherently have.42 However, in terms of positive legal method the rights pre-existing the legal order are merely social or individual interests, or social customs; they acquire positive legal nature only after the legal order recognises them and makes them part of binding law. To illustrate, the 1776 American Declaration of Independence did suggest that ‘all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness’. Still, the practical realisation of those rights, or their endowment with the legal status if a positivist formulation should be used, began through positive law when the Bill of Rights was adopted by way of the amendments to the constitution. The State and legislator may well depict natural rights as the purpose of its law-making exercise. Or alternatively, the State and legislator may proceed on a premise that the utilitarian imperatives of the greatest happiness of the greatest number should drive the law-making process and inform the content of the law. In some cases one premise may appear as a consideration countervailing to another premise. Still, the content of the law is identified from the sources of law, not from considerations that lead to its making. In English law, the doctrine of constitutional rights has been developed through judicial law-making. While courts may have been motivated by ideas of natural justice, what turns these rights into positive law is not their immanent value but the authority of courts to make law on the relevant matters. Kelsen explains that ‘[t]he natural-law doctrine presupposes that value is immanent in reality and that this value is absolute’. Therefore, ‘the natural-law doctrine is based on the logical fallacy of an inference from the “is” to the “ought”’.43 However, ‘[t]he value is not inherent in the object judged as valuable, it is the relation of this object to a presupposed norm. We cannot find the value of a real thing or of actual behavior by analyzing these objects. Value is not immanent in natural reality. Hence value cannot be deduced from reality … There is no logical inference from the “is” to the “ought,” from natural reality to moral or legal value.’44 All social norms apart from legal norms are premised on particular values they attach to particular things; however, these values exist in the subjective belief of those who hold them. By contrast, the way and extent to which the legal order prioritises some values and interests over other is objective. This prioritisation acquires externally binding force over individuals. The correctness of Kelsen’s position is confirmed in practice. Even with regard to something as obviously valuable as human life, everyone would

GT, 79 (referring to Dernburg and Blackstone). WPQ, 485. 44 WPQ, 484–5. 42 43

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generally agree that a wanton taking of human life should be illegal and punishable; but such general societal agreement is not so obvious with regard to conduct that generically looks like homicide, such as the action of police in self-defence. When in a case like Williams(Gladstone)45 the judge discusses whether someone’s life may be taken if the police officer believes it to be the right course of action in the circumstances, or whether it should depend on reasonable or honest belief of the police officer or their assessment of facts in the relevant situation, surely the judge does not consider human life to have any immanent, let alone, superior, value. Instead, he contextualises this particular value against the background of other competing values and renders what he considers an outcome balanced with regard to all underlying values. This very balance of values, which is endowed with legal force, is entirely a creation of the legal order. There may indeed be a utilitarian preference towards protecting police officers, but that is a rather indeterminate and unverifiable assumption, and the extent to which that position should determine individuals’ rights and duties is determined exclusively by the legal system.

3.3

PUBLIC INTEREST, LAW AND LEGISLATION

Most of the major theories about State and law are driven by the need to identify the purpose of political communities, mostly by reference to some transcendent and objective good that they serve. Some theories envisage State and law as essentially unlimited tools for achieving those public purposes, while other theories favour the limitation of State power through the law to protect certain inalienable rights of individuals.46 Whether with Kant’s emphasis on allocating freedom to individuals, or Hobbes’ sovereign providing security for the population in exchange for their rights, or Bentham’s prioritisation of public interest over any competing interest, what is inevitably involved is the coercive authority used to impose rules on people regardless of their will or approval, by producing the series of binding legal prescriptions of a particular content. Several theories are nevertheless premised on the assumption that there is some public interest justification, goal or purpose that legitimates the existence of a State legal order to rule over individuals regardless of or even against their will. It is here that all public interest justifications of State action contain the seeds that are bound to grow into a duplication of analysis or perception, should any particular justification of a State legal order be carried to its logical conclusion. And such duplication of analysis or perception leads

(1984) Crim App. R. 276. For the range of such theoretical justifications see G Jellinek, Allgemeine Staatslehre (1914), 184ff. 45 46

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to believing that there is some transcendent public interest, good or utility, as a form of some ‘objective’ or transcendent law, which determines, or ought to determine, the range of rights or obligations of individuals or of public authorities and thus claims a degree of legitimacy that at times overlaps, and at times competes with, the legitimacy that positive legal rules applying to the same matters enjoy. If we suppose that such ‘objective law’ exists, we must also clarify what exactly the interest-based theories expect from the dynamics of the legal order: to develop by way of reform and take social interests on board to avoid revolution; or to admit some extra-legal inputs at the cost of disregarding legal requirements and violating the integrity of the law? Extra-legal considerations or elements can be brought into the legal system in various ways and at various levels: through the justification of the legal system by extra-legal considerations, through advancing the ideas of public utility justifying legislation, or postulating natural law or divine law as requiring the obedience of the existing legal order; or by imagining law-applying organs such as courts as agents of the society to re-develop the law to meet some extra-legal imperatives that are seen as reflective of the needs, interests, priorities or policies of the relevant society. The next issue is the extent to which positive law incorporates some elements of such natural law broadly conceived, or whether the constitution allows these elements some play in the development of the law. This is obviously not a revolutionary natural law but the constructive use of it at the service of the positive law constitution for law-making patterns that that constitution itself foresees and enables. This is a natural law merging with utilitarianism, aspiring to propose policies that could be turned into law. Natural law theories, as conceived broadly, also include references to ethical and social preferences from the religious or secular perspective. This produces the analytical overlap between these different theories or disciplines. To name but one example, in Sir Frederick Pollock’s words, ‘the principle of reason or reasonableness which runs through the whole of our Common Law, wherever technicality leaves it room, is just an English version of the Law of Nature’.47 Pollock continues that ‘[o]ur grand pervading principle of Reasonableness, which may almost be called the life of the modern Common Law, is intimately connected with [natural law]’. And, ‘[d]uring the classical period of medieval English law the King’s judges were quite aware of the Law of Nature, and sometimes (though, as St. German says, not usually) appealed to it by name’.48 Pollock

F Pollock, History of the Science of Politics (1930), 119. F Pollock, The Genius of Common Law (1912), 81; see also Friedmann, Legal Theory (5th edn, 1967), 135. 47 48

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further observes that natural law ‘under the name of reason, reasonableness, or sometimes natural justice, is fully recognized in our own system, but the difference of terminology has tended to conceal the real similarity from English lawyers during the last century or more’.49 That such natural law thinking should be re-born or re-discovered in the process of practical workings of a system of positive law is a rather curious yet obviously present fact that legal systems end up living with: the State legal order is created for the sake of some particular purposes and interests, it operates as a discrete and fully fledged law-making and coercive machinery, yet it is expected by various theories to reflect that public interest and utility which retains its normative value even after the State legal order has begun its operation as a positive legal order. For some, this may be an insistence of the continuing validity of an original ‘social contract’, for others this may have to do with various social reform agenda, and yet others may view this simply as an aspect of the dominance of socio-political power over the legal system, whether one approves or disapproves of particular uses of that power. The interest-based approach is, therefore, inevitably premised on the particular perception of the nature of law-making authority. A key question is: if the law supports the primacy of the right interest, which constitutional organs are supposed to protect such interests? This has implications for the constitutional allocation of power, and risks getting onto a slippery slope. For, once we accept that there is a guide as to what should be law that determines the legislator’s role, then it becomes pressing to accept that law-applying organs – administration and courts – must also interpret and apply legislation as reflecting that transcendent ‘infallible guide’, not inevitably the legislator’s will. This slippery slope is inevitable, because the analytical postulation of the role of courts and administration requires just as much, or as little, as was required from Bentham or Austin to postulate the position of the omnipotent sovereign legislator as a tool to enforce the public interest. If the parliament has the sense of public utility, so could the administration and courts have it when they decide cases or exercise discretion. At any rate, the emphasis on the autonomous relevance of interests in the legal system results in encouraging re-opening the policy decision that the law-maker has already made when enacting the legal rule in question. Unless such pattern operates unabated right down the line, the public utility approach cannot be accommodated by any model of modern constitution.

Pollock, Columbia LR, 11.

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Goodhart essentially seconds the pure theory by observing that: Law is merely a piece of machinery and can be used either for or against liberty. Law is not necessarily either reasonable or moral … Law ought to be based on reason, it ought to protect liberty, and it ought to be in accord with the moral law, but these ideals are not a necessary part of our conception of law.50

On analytical terms, the idea that the law is a coercive regulatory social order and the idea that it is there to serve some objective public good have never actually sat well together unless, of course, a particular theory is premised on the ability of the ruler to see better than the populace what that public good is.51 The initial propagation of the absolute sovereignty of parliament in the writings of Bentham and Austin has been developed with the aim to portray the legislature as a tool of the social interest of the electoral or legislative majority of the day. Generally in the conditions of democracy where authorities are meant to represent the popular will, temptation or willingness to see law as representative of social opinion increases. Law may thus be perceived not just as part of commands issued by public authorities to bind people against their will but also as prescriptions as to what people would consider desirable and acceptable anyway. This two-way, or circular, perception as to the relationship between public authorities and society is among the factors responsible for the approach that sees law from a value-based perspective. This perception is similar with natural law or divine law approaches in that it presupposes something behind the law that constitutes and legitimates the law, is essentially more important than it, shadowing and second-guessing the process of law-making as well as application of the law. One way the above perception is illustrated is the thesis that democratically elected legislature is an agent of the society and meant to uphold the pertinent social interest. According to Kelsen, parliament cannot be an organ of society because there is no such thing as the will of the society (Gesellschaftswille). Population of the State includes multiple interest representations which results in them electing their representatives to the parliament who in their turn will represent their particular interest (Sonderinteresse). There is no uniform society coinciding with the spatial or population framework of the State. When the elected parliament takes majority decisions, these manifest not the will of the society but of this organ, which is a fiction constructed by the legal system. Thus, there is no such thing as common interest (Gesamtinteresse) but there are only group interests (Gruppeninteressen) that one way or another get to control A Goodhart, English Law and the Moral Law (Hamlyn Lectures 1953), 5. Ihering indeed compares the role of law in society to the role of a physician in relation to the patient; Ihering, 334–5. 50 51

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the public authority and ultimately shape the will of the State. Especially in bicameral parliaments the representation of conflicting social interests is most vivid. But precisely those particular social interests cause the parliament to be a medium (Zwischenbau) between the State and society.52 The historical process of the rise of democracies obviously emancipates the law from its dependence of law on natural law or religious considerations. Kelsen’s theory was one of the first theories to embrace the law’s essence at the time when the national law-making processes in Europe got intertwined with the pluralism of political parties and political opinions; when the gradual rise of parliamentarism and growth of democracy in Europe resulted in dissociating the essence of political process from the singular conception of raison d’etat or national interest determinable by monarchs and their privy councils. In England these processes had begun earlier than on the continent. Yet, post-1832 electoral reform, there was hardly any analytical effort made between Bentham’s utilitarianism developed at early periods of electoral reform and Dicey’s theory of legislative sovereignty to address the relationship between the public interest and the constitutional authority. With the gradual expansion of the electorate and the achievement of universal suffrage, the need increased for a legal theory that emphasises the discrepancy between the authority to adopt the laws and how those laws are perceived in societies that now have a more diverse and pluralistic electoral base. Austin tried to embrace within jurisprudence the utilitarian theory, which is essentially a non-legal theory, and this led to subsumption, if by implication only, within the power of the sovereign of the adoption of laws that do not match a particular perception of public utility. Were it otherwise, then public opinion would be sovereign, not the monarch in parliament. It should, of course, be appreciated that in England the utilitarian idea of securing greater happiness to the greatest number has gained increasing currency with the electoral reforms in the first half of the nineteenth century, which significantly broadened the electoral base. But compared to the size of the population in Austin’s time, that electoral base remained still quite small to validate the thesis that legislation was genuinely an exercise in securing the public good on the terms acceptable to the greatest number. In all possible models of political systems, including modern democracies, the law remains to be a social technique of coercive ruling before it is a tool for public utility perceived from whichever perspective. In Germany in the nineteenth century, legislature was more representative of the population than the nineteenth-century UK parliament, but its powers were more limited than those of the latter, control over the executive was less and Hauptprobleme, 476, 479–80.

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the latter’s manipulation of legislative will prominent. Therefore it was easier and more comfortable for the German legal theory before Kelsen to think that legislation in the end can be explained by a particular societal perception of the right and wrong. Social welfare legislation was adopted in Germany towards the end of the nineteenth century and this presumably amounts to an example of an unrepresentative government legislating for the greater public good of the population and thus the law does respond to the ethical minimum as to the position of the poor, weak or vulnerable. To the query as to why the law did not reflect that ethical minimum or public good five, ten or 20 years before, Jellinek’s theory would probably answer that it happened when the public and social opinion developed to regard that matter as part of the ethical minimum.53 But that answer would be just as plausible as one pointing to the change of class and political power position in Germany in the interim, which factor ultimately drove the legislator towards embracing the agenda of social reforms. In other words, the legislator ruled to introduce social reforms because that was, on the whole, in the interest of those who controlled the legislative process. The adoption of the law was motivated by a particular policy, but it was owed entirely to the choice of the legislator for reasons they found to be pressing at that particular time. Historical development of legislative authority in England particularly manifests the fact that the content of the law does not have to be identical with any social interest or perception. As explained, the development of English parliament was driven by the necessity to reach decisions on relevant matters and to achieve a compromise.54 Dicey has similarly observed that ‘the public opinion which finds expression in legislation is a very complex phenomenon, and often takes the form of a compromise resulting from a conflict between the ideas of the government and the feelings or habits of the governed’. This ‘is more manifest than elsewhere in a country such as England, where the legislation enacted by Parliament constantly bears traces of the compromise arrived at between enlightenment and prejudice’.55 The will of the legislator involves the process of balancing competing values and interests, and endowing the final product or outcome with the force of law. Dicey also admitted that ‘[m]en legislate, it may be urged, not in accordance with their opinion as to what is a good law, but in accordance with their interest, and this, it may be added, is emphatically true of classes as contrasted

Ihering, 333, suggests along such lines that ‘[c]onditions change in society as well as in the individual; what may be dispensed with here is necessary there; what is useful in one place is injurious in another’. 54 M Oakeshott, Lectures on the History of Political Thought (2006), 318. 55 Dicey, 10. 53

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with individuals, and therefore of a country like England, where classes exert a far more potent control over the making of laws than can any single person’.56 None of that is to suggest that legislation always forms a mirror-image of any particular sectoral or class interest. Instead, the will of the legislator decides which values, opinions and interests to take on board, and to what extent, to turn them into law. Dicey’s point precisely was that particular interests may be compromised in the face of public opinion or, to the contrary, those interests may prevail over, indeed inform the development of, that public opinion.57 ‘Nor, on strict utilitarian principles, was it to be expected than any other government than a democracy would legislate with a view to the happiness of the whole community; a true monarch would look to his own interest, an oligarchy would administer public affairs with a view to the interests not of all but of a part of the citizens, viz. of the oligarchy.’58 The utilitarian belief was that ‘a Parliament elected by the ten-pound householders would study to promote the greatest happiness of the greatest number, i.e. of the whole community’.59 Thus when the legislature no longer represented a class interest, it would aim at the general interest, honestly and with adequate wisdom.60 This flew in the face of the fact that ten-pound house owners themselves were a class or social group.61 Consequently, the utilitarian construct about such democracy was only in a degree different from the model that would entrust the government of a country to an enlightened monarch or enlightened oligarchy or aristocracy and rely on their benevolence and good intentions. It is true that the unreformed parliament dominated by landowners would not be very receptive to the ideas of social reform. However, any group of persons or class represented in the parliament, large or small, can have and pursue their own interests, and these interests are never identical with those of the entire society or population. But the problem with the utilitarian thinking is broader than any particular pattern of popular representation at any particular stage of constitutional history. In a majoritarian democracy based on universal suffrage, elections are fought with substantially different visions of public interest and utility. The legislative will more often upholds the interests of some social groups over

Dicey, 12. Dicey, 14. 58 Dicey, 158. 59 Dicey, 160. 60 Dicey, 161. 61 ‘The English public then came to perceive that Benthamism meant nothing more than the attempt to realise by means of effective legislation the political and social ideals set before himself by every intelligent merchant, tradesman, or artisan.’ Dicey, 174 (emphasis added); see also ibid., 304. 56 57

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those of other social groups: any tax or welfare legislation is an example of that, whatever its proclaimed aim. It may be easier to see that data protection legislation does serve the general interests of the entire public, but that is not so easy to see in legislation that introduces a poll tax or takes away legal aid. In short, the utilitarian calculation as to legislation in the interest of the entire community is liable to be undermined under every possible pattern of popular representation in a legislative organ. From the juridical point of view, moreover, the principal question is not whether the utilitarian perceptions as to the role of the legislator hold true in fact. All in all, legislative supremacy enables parliament precisely to act against the wishes of important sectors in the society. Parliament’s supremacy means above all that it is autonomous; its laws are binding whether or not they are seen as good laws. They are the product of the will of the legislator, not a mirror-image of any socio-political perception of the matter that the legislation in question addresses. Specific rules and prescription the ‘sovereign’ legislator makes are his voluntary decisions; he is not in his decision-making bound by any utility, protection or security considerations, he just enacts such laws as he pleases, and they are binding on individuals and society whatever the latter think of them. How else could a sovereign be a sovereign? The utilitas publica is, at most, facultative guidance for the sovereign in his decision-making process, not the ‘infallible guide’ as Bentham has presented it; but more plausibly it relates to reasons why power was initially surrendered to him.

3.4

PUBLIC INTEREST AND ADJUDICATION

Let us now move to another dilemma that the interest-based theories have presented with regard to the nature of the legal system and constitutional order, namely the involvement of extra-legal considerations in the judicial process. The initial thesis that puts up a challenge to the pure theory is linked to the meaning of law-making and legal change as opposed to the discovery and application of legal rules.62 There is ample linguistic resource for describing

As Hart suggests, ‘neither Bentham nor his followers denied that by explicit legal provisions moral principles might at different points be brought into a legal system and form part of its rules, or that courts might be legally bound to decide in accordance with what they thought just or best’; Hart, Harvard LR, 599. For further discussion see Ch. 4. 62

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the nature of judicial function in various ways, one of them articulated by Roscoe Pound: the task of a judge is to make a principle living, not by deducing from it rules, … but by achieving thoroughly the less ambitious but more useful labor of giving a fresh illustration of the intelligent application of the principle to a concrete cause, producing a workable and just result.63

Hart similarly queried: ‘[H]ow does the wrongness of deciding cases in an automatic and mechanical way and the rightness of deciding cases by reference to social purposes show that the utilitarian insistence on the distinction between what the law is and what it ought to be is wrong?’ Anyone who disapproves of this approach would, according to Hart, ‘say that they are law, but they are bad law, they ought not to be law. But this would be to use the distinction, not to refute it.’64 From this perspective, there is a similarity between the legislator’s tasks and judicial law-making, because both processes can lead to changes in the existing law to make it correspond more to prevailing social policies and imperatives. More broadly, Hart essentially argues within the same analytical space as Pound before, and addresses the same questions. Lauterpacht’s observation was that: We may have abandoned the theory that statutes repugnant to natural justice are void, but that does not mean that we have ceased to shape positive law and to interpret it, sometimes out of recognition, by ideas for which the term natural law is an elastic and convenient expression. In so far as positivism disregards this phenomenon it becomes a dogma divorced from its own premises and from actual practice … The manner in which judges have recourse to the “law above the law” or to the “law behind the law” in order to obliterate the gap between law and justice has been for a long time the persistent and central theme of legal philosophy.65

This reasoning may relate to statutory interpretation, or to the interaction between law and policy in judicial practice; both matters may involve policy and ideological choices of a decision-maker in a similar manner. There is no reason to quarrel with the proposition that various headings of justice or policy broadly give expression to natural law and express its values (but also to social interests, which term for Kelsen more realistically expresses what others call justice or natural law). However, in English law justice or natural law is rarely used to subvert existing positive law, unless they profess R Pound, Mechanical Jurisprudence, 8 Columbia LR (1908), 605, at 622. Hart, Harvard LR, 612. 65 H Lauterpacht, Kelsen’s Pure Science of Law, Modern Theories of Law (1933), 133. 63 64

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edly create a new rule or principle of law. In these cases the outcomes have to do with the constitutional authority of courts in the area of law-making and statutory interpretation, not with any inherent force of natural law, justice or social interest. The positivist analysis with Kelsen proposes merely to focus on the constitutional authority of the judges to use their discretion accordingly and create or change the law they are constitutionally entitled to create or change.66 This is neither defence nor criticism of the judge in question, neither critical nor apologetic, but merely amounts to a focus on the mechanics of the positive legal order through which certain non-legal considerations are brought on board. Kelsen discusses who is competent to decide whether a positive law is or is not in conformity with the ‘objective law’. The one is that it is within the exclusive competence of the positive law-maker, the legislator and the judge, to decide this question if it is disputed. If so, the positive law will always be declared to be in conformity with the ‘objective law’, and the dualism of the two laws has the effect of a justification of the positive law by a fictitious ‘objective law’. The other possibility is that any individual is competent to decide the crucial question. Then the individuals who are the law-making organs of the community have the same right to decide the question as the individuals who are subjected to the positive law.67

In fact, thus, what on Joseph Bingham’s and HLA Hart’s account can be described as the separation between internal and external points of view is, by and large, owed to the difference between the differing opinions and the law that is binding on those who hold the opinion. The position of those two categories of individuals cannot be equated because the legal system places them in different positions. The real question is, thus, not whether the law has to adapt to some transcendent ‘objective law’, but whether and to what extent the legal system empowers certain officials to develop the law the way that reflects relevant policy considerations. The historical development of English law has been conducted on the basis of judicial authority which is conferred to courts by positive law, and which they exercise to shape the positive law. This approach was consolidated in the decisions and works of Sir Edward Coke. Coke has been described as ‘the central figure in the history of English law’, and ‘the greatest single influence there has ever been in the history of [English] law’.68 The definite policy Coke was pursuing vigorously was aimed ‘to establish the Bench as an independent authority arbitrating between the See further Ch. 4 on judicial law-making. YLJ, 389. 68 AL Rowse, The England of Elizabeth (1951), 376, 378. 66 67

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Crown and the subject’.69 As observed, ‘[i]n the hands of Sir Edward Coke, Bracton’s dictum Lex facit regem takes on a completely new meaning. Only after the question “who sets the law?” has been settled, could the boundary between laying down the law and bringing it into effect be finally drawn, and serious practical consequences attached to that demarcation.’70 The royal authority, indeed all public authority was subsumed and brought into the remit of common law, which was seen as a complete set of rules that not merely prescribe rights and duties of individuals, but also provide the guidance to identify the meaning of any legal rule whatsoever, including ones contained in legislation. Coke viewed law as a product of experience, different from the reflective reason of individuals. ‘Artificial reason’ and ‘judgment of law’ was not the same as natural reason,71 or the ordinary ability of individuals to make correct moral judgements. This ‘artificial reason’ is presumably Coke’s main gift to the legal theory.72 Law was based on wisdom attained through continual exercise of judges, ‘which no one man, (being of so short a time) albeit he had in his head the wisdom of all the men in the world, in any one age could ever have effected or attained unto’.73 Emphasis on common law as judicial product was meant to protect it from criticisms based on natural law and natural justice.74 It has also been suggested that ‘the expression of artificial reason suggests a substitute for reason – an artifice that does a job better than a natural faculty’. And this is not a reason of a single individual, but the reason deducible from the repository of the law.75 For Coke, law was a ‘perfection of reason’ and hence no man ‘out of his private reason’ could be wiser than the law.76 This is a statement of positivist creed; law follows from its sources (whatever they might be at the particular stage of development of the legal system in question), not from human or social preferences. Positive law thus understood imposes limits on the freedom of individuals but also of the government. This is the basis in English law for JR Tanner (ed.), Constitutional Documents of the Reign of James I (1930), 174. AP D’Entreves, The Notion of the State (1961), 81. 71 JGA Pocock, Burke and the Ancient Constitution – A Problem in the History of Ideas, in J Lively and A Reeve (ed.), Modern Political Theory from Hobbes to Marx (1989), 167–8. 72 C Gray, Reason, Authority, and Imagination: The Jurisprudence of Sir Edward Coke, in P Zagorin (ed.), Culture and Politics from Puritanism to the Enlightenment (1980), 30. 73 7 Coke Report 4, 77 ER, 381. 74 Gray, 40. 75 Gray, 31. 76 Coke’s Institutes, cited in CJ Hill, Intellectual Origins of the English Revolution (1965), 253–4. 69 70

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viewing law as dependent on authority rather than appreciation and opinion, grounding of positivism in the context of English common law. The opposite intellectual tradition also has a considerable history, in fact emphasised in England: Francis Bacon and Edmund Burke drew a distinction between the law-maker’s wisdom and lawyers’ wisdom; the two were different from each other; statesman would shape and develop the law by reference to reason, which was superior to law.77 That approach anticipates the structure of Bentham’s utilitarian argument and reasoning: non-legal considerations of reason or utility shape the content of the law when the law-maker legislates by reference to those non-legal considerations. Similarly, from the early utilitarian perspective, Hobbes disapproved the idea of legal reason as artificial reason, asserting that judges as human beings are capable of having human reason only.78 Overall, from the viewpoint of the pure theory, the relationship between law, interest and morality is complex and multi-faceted. As a theory of positivism, pure theory is straightforwardly against confusion between law and extra-legal elements in explaining the validity of positive laws. Prima facie at least, this approach is reflected in English law that courts do not attack statutes on moral grounds or question parliament’s moral judgement (though that is not invariably true). Such positive laws do not depend for their validity on reflection of or compliance with moral principles. However, another aspect also arises with regard to moral principles influencing the process of law-making and how pure theory is used to explain that process. For, adjudication does involve an element of law-making and courts reach their decisions by using discretion, which phenomena is even more characteristic to common law jurisdictions.79

3.5

LAW AND MORALITY

The pure theory does not pretend that, in a positive legal order, everything happens out of moral or social indifference. Indeed, a legislator or judge creating a new law or amending an old one can often be said not to be politically, morally or ideologically indifferent. Instead, the pure theory’s jurisprudential observation of the legal process is supposed to be indifferent towards non-legal factors, because otherwise a legal theory would result in an approval of laws and decisions which it would favour from a particular moral or ideological point of view and disapproval of other laws and decisions. There may well

Friedrich, 80. T Hobbes, Elements of Law, The English Works of Thomas Hobbes, vol. 6 (1860), 5. 79 See further Ch. 4. 77 78

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be other theories prioritising such tasks. The pure theory does not wish to be doing that and in that respect it has to be taken on its face value. The pure theory does not propose to approve or advocate moral indifference; it even admits that legal and policy decisions are made for various different moral, social and political reasons. The jurisprudential treatment of moral considerations driving the dynamics and development of a legal system has at times been encouraging, legitimising or censuring the law’s interference with individual freedom. Bentham and other utilitarians have viewed the legal system as a tool of enforcing the dictates of public utility. By contrast, with John Stuart Mill the interference of the law with personal freedom is warranted to prevent causing harm. With Lord Devlin, the law is the tool for the enforcement of public morality. All these thinkers seem to understand that the law as a system of positive rules is different from those extra-legal considerations that are supposed to drive the law’s development. But legal theory is also familiar with the approaches that discuss the relative normative value of law and morality in relation to each other and their competing legitimacies. Sir Arthur Goodhart articulates a view similar to Jellinek’s ethical minimum, now specifically with regard to English law, suggesting that ‘[t]here is in England, therefore, a close bond between law and morals and it is impossible to understand the nature of English law unless we also recognise the various moral ideas which it represents’, such as individual freedom and justice; and that in English law ‘morality has played a particularly important part in the development of the common law’ and that ‘English law and the moral law are rarely in conflict’.80 Goodhart acknowledges that natural inclinations of individuals do not always overlap with perceptions of their moral duties. Nevertheless, he suggests that ‘our instinctive feeling is some guide to objective moral law’.81 Furthermore, ‘the reasonable man is not only the prudent and sensible man, he is also the moral man. It is reasonable for him to act in accord with the proper moral standards, and so his actions are both controlled by morals and can be used as a test for morals.’ Fairness and justice can also be subsumed under that heading.82 Lauterpacht suggests that the ‘affirmation of the autonomy of man need not necessarily result in ethical agnosticism. And frankly, it is not suggested that Kelsen aspires to or succeeds in maintaining his moral relativism.’83 On the other hand, Honore suggests the dichotomy between morality and law, in the

82 83 80 81

Goodhart, 8. Goodhart, 33–4. Goodhart, 82. Lauterpacht, 137.

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sense that ‘all laws are subject to moral criticism, so that to do what is legally required is not always to be morally in the clear, just as to do what is morally required is not always to be legally in the clear’.84 Raz suggests that Kelsen ‘is a moral relativist. No moral position can be objectively proved and defended. There are no intuitively true moral beliefs. Moral opinions are matters of personal preferences. By claiming objective validity, natural lawyers breed illusions and use them for various ideological purposes.’85 Goodhart subscribes to the definition of morality as one’s sense of the right and wrong, or with one’s character and disposition.86 Kelsen himself holds that the chief moral injunction to an individual is ‘[r]epress your inclinations, refrain from realising your egoistic interests’.87 Goodhart’s definition looks broader than Kelsen’s but, in view of the morality’s lack of a coercive character, its relevance is displayed in terms of an individual’s mind, disposition, character and inclinations, much as those could be generated by a person’s internal consciousness, or through external societal influences. Austin’s is a rather bifurcated and differentiated concept of morality. He emphasises on the one hand that there are ‘rules of positive morality which are merely opinions or sentiments held or felt by men in regard to human conduct’. And then speaks of ‘those positive moral rules which are laws properly so called’.88 ‘By the common epithet positive, I denote that both classes flow from human sources. By the distinctive names law and morality, I denote the difference between the human sources from which the two classes respectively emanate.’89 Whether this is seen as analytical confusion or merely a terminological one, this is hardly suitable for building a coherent view regarding the relationship between law and morality. With such Austinian perspective, jurisprudence would not be armed with a coherent methodology to deal with divergences between various normative systems that all aspire to having a certain degree of objective status and legitimacy.

A Honore, The Dependence of Morality on Law, 13 OJLS (1993), 17. J Raz, The Authority of Law (1979), 132. 86 Goodhart, 28 (referring to the Oxford English Dictionary). 87 H Kelsen, Essays in Moral and Legal Philosophy (1973) (‘Essays’), 86. 88 J Austin, The Province of Jurisprudence Determined (1954), 180–1; to confuse the two further, Austin goes on to say that ‘they are not positive laws: they are not clothed with legal sanctions, nor do they oblige legally the persons to whom they are set. But being commands (and therefore being established by determinate individuals or bodies), they are laws properly so called’; ibid., 184. 89 Ibid., 174. 84 85

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The concepts of morality, reason and natural law may refer to overlapping values and principles but they differ in terms of their original rationales, justification and of their reflection in human mind.90 The pure theory still takes a rather unitary view of these categories, distinguishing them from the law in the sense that they relate to values that are particular to every individual’s feelings, wishes and aspirations. Just like other interests and values, morality is also connected with the very subject-matter of legal regulation – the degree of individual liberty and what individuals believe they ought to be able to do. And the law regulates them all. Any judgement as to the extent to which the legal order must enforce or interfere with morality is simultaneously a judgement as to the extent to which the legal order ought to affect or restrain the interest of individuals to engage in activities to which the relevant moral norms relate. From the viewpoint of legal regulation, dealing with moral issues is essentially the same as the balancing of competing interests. Take, for instance, the perennial quests for liberty and security, in some cases liberty and security of the same person. Issues involved in the Brown case decided by the House of Lords have illustrated the dilemma as to how far the legal system could go in adopting the paternalistic approach with regard to individuals’ choices and preferences as to whether they should be able to engage in sado-masochistic activities that were said to be consensual.91 However, in other cases such as those dealing with counter-terrorism laws and policies, it is about the utilitarian choice between one person’s liberty and another person’s security. Kelsen’s basic take on the relationship between law and morality is to allude to the thesis: that law is in essence moral, i.e., that behaviour enjoined or forbidden by legal norms is also enjoined or forbidden by the norms of morality. That if a social order enjoins a course of conduct which morality forbids, or forbids one which morality enjoins, this order is not one of law, because it is not just. But the question is also answered to the effect that law can be moral – in the sense just defined, i.e., just – but does not have to be; that a social order which is not moral – and that means just – can nevertheless be an order of law; even if it would be admitted that the law ought to be moral, which is to say, just.92

Furthermore: if a legal order is evaluated as moral or immoral, just or unjust, this expresses its relation to one of many possible moral systems and not to ‘the’ morality, so that only

Cf. Goodhart, 28–30, 35–6. Brown [1994] 1 AC 212. 92 Essays, 87. 90 91

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a relative value-judgement is passed, and not an absolute one; and that the validity of a positive legal order is independent of its conformity or lack of it to any particular system of morality. … a purely relative morality cannot – either consciously or unconsciously – perform the required function of furnishing an absolute standard for the evaluation of a positive legal order … if a legal order is reckoned unjust by the standard of one moral system, it can be reckoned just by the standard of another.93

Consequently: if the framework of a positive legal order is to be judged ‘morally’, it is necessary to bear in mind that the standard is a relative one, that another evaluation on the basis of another moral system is not excluded; that if a legal order is reckoned unjust by the standard of one moral system, it can be reckoned just by the standard of another.94

This is pretty much the approach that drove the Wolfenden Committee, the only difference being that the Committee speaks of private morality while Kelsen speaks of relative morality. On a broader plane, identifying morality with the law is the confrontation between the two wills, one being the will of individuals and other entities who are addressees of the legal regulation, and the other being the will of organs that enact that legal regulation, and presumably the will of the general public that drives the legal regulation. Therefore, the law’s handling of the moral dimension runs into the law’s ubiquitous exercise of balancing between conflicting interests held by various parts of the society. The Wolfenden Committee’s approach to morality seems to be close to Kelsen’s approach to the relationship between law and morality. Lord Devlin’s principal question was whether society has the right to pass judgement on what the public morality is, and then to use law as a weapon to enforce it.95 The Wolfenden Committee concluded that the function of law, notably criminal law, was to protect individuals from what is offensive and injurious, not to intervene in the private lives of citizens. ‘Unless a deliberate attempt is to be made by society, acting through the agency of law, to equate the sphere of crime with that of sin, there must remain a realm of private morality and immorality which is, in brief and crude terms, not the law’s business. To say this is not to condone or encourage private immorality.’96

Essays, 90–1. Essays, 91. 95 P Devlin, Morals and the Criminal Law, in R Dworkin (ed.), Philosophy of Law (1977), 72. 96 Report of the Committee on Homosexual Offences and Prostitution (Wolfenden Report), 29 October 1957, para. 62. 93 94

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The Wolfenden Report declines to endorse public morality on utilitarian terms so that the individuals’ vision of their private morality must submit to the society’s general attitude on morality. Endorsing the notion of private morality, specific to each individual, is tantamount to dissociating, in this particular area at least, morality from the notions of public interest and public utility. The report’s crucial focus is on the relationship between State, society, law and morality. These are different entities, elements or systems, and the Committee prefers their separated co-existence rather than their merger. And, the position that the law takes by not regulating ‘private immorality’ is not to approve it, or to draw any moral judgement. The legal system sees its role in regulation of human conduct regardless of the moral judgement that such human conduct may attract. The law itself takes no moral position on such conduct. The morality issue has, therefore, been disposed of through the use of utilitarian calculus. The views supported by the Wolfenden Report and Lord Devlin generate an irreconcilable difference. Each of these views has powerful and persuasive elements in it, but they are in mutual contradiction. Respecting individual freedom would be just as weighty a consideration for any sound individual as would be the preservation of moral foundations of the society. One of these conflicting views is not more authoritative than another. And in certain contexts they may be irreconcilable. The legal position that homosexuality is decriminalised but the type of activities involved in Brown is not may not convey the sense of a right balance to absolutely everyone. Private moralities continue to differ, opinions on this have been widely divided, while the law is what it is. In fact, the law has been evolving its attitude towards the degree to which individuals can consent to harm and, almost a century before Brown, in R v Coney97 bare knuckle fighting was declared to be illegal and to amount to an actual bodily harm even if consented to. In both cases the interests of persons willing to engage in or otherwise support or organise the relevant activities have been adversely impacted upon, and their private morality has also been affected. Either of the possible outcomes in Brown was, or would have been, within the bounds of the law-making authority of courts under common law. At any rate, Brown is generally compatible with the Wolfenden Report’s approach that law must ‘provide sufficient safeguards against exploitation and corruption of others, particularly those who are specially vulnerable because they are young, weak in body or mind, inexperienced, or in a state of special physical, official or economic dependence’.98

R v Coney (1882) QBD 534. Wolfenden Report, para. 13.

97 98

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The matters involved in the Wolfenden Report and Brown have for a long time been debated from various ideological points of view, focusing on articular conceptions of autonomy and morality, on liberal individualism and social conservatism. The law, however, is not a mirror-image of any particular perception of what a good society should look like, but a body of impartial rules that regulate the conduct of individuals regardless of those individuals’ attitude. Those who were satisfied with the prioritisation, in the Wolfenden Report, of the individual freedom over private morality of those who disapproved of homosexual activities may well have been surprised to see in Brown that the law’s ability to prioritise between liberty, morality and public interest indeed cuts both ways. Lord Denning has stated in Hoffmann La Roche that ‘Parliament is a better judge of moral claims than we [judges] are’.99 If the law ought to be disapproved on ethical or moral grounds, yet doing so falls beyond the gift of the judiciary, then it is all the more natural for the pure theory to insist that a theory of positive law should not inherently be concerned with the moral or ethical acceptability of legal prescriptions. However, the pure theory is not unfriendly to the concept of judicial law-making and does consider it as a will-driven process through which the courts can take on board non-legal considerations when deciding to develop or amend any particular rule or principle of common law. A general priority has been proposed by Lord Lowry in Bland to the effect that ‘[i]t is important, particularly in the area of criminal law which governs conduct, that society’s notions of what is the law and what is right should coincide. One role of the legislator is to detect any disparity between these notions and to take appropriate action to close the gap.’100 The Bland case, dealing with the issue of whether the termination of life-support to terminally ill patients would be legal, visualises but one context illustrating whether or how such a gap can be filled feasibly. In Bland their Lordships considered that, owing to its acute moral importance, the matter should preferably be referred to parliament. However, a rather mundane yet pressing question that the reality of English law furnishes is whether the parliament can be expected to legislate on morally divisive and controversial matters more readily and easily than courts are prepared to adjudicate upon them. On such matters involved in several relevant cases (e.g. Brown or Bland), parliament had thus far not legislated. Expecting too much from one branch of authority and requiring too little from another may be rather presumptive, as both legislative and judicial tasks involve human

Hoffmann La Roche [1975] AC 297, at 321. Airedale NHS Trust v Bland [1993] 1 All ER 821, 877 (per Lord Lowry).

99

100

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judgement on complex issues of morality, policy and social opinion. And it may also appear prejudicial to think that the courts’ deduction of relevant solutions through the incremental development of the existing principles of common law is any more difficult or controversial (or indeed will be seen as such by the public), than any possible outcome that parliament might produce through its fresh and blanket use of political policies. In fact, it may be more difficult for the parliament to answer complex moral questions through its use of the utilitarian adjustment of competing values and interests, than it is for courts to deduce the legal position from past precedents or query whether policy considerations in favour of moral concerns are strong enough to warrant the change of existing legal rules. Parliament has to deal with controversial issues on their global terms, while courts can conduct a more nuanced and incremental process whereby the law is preserved as it is or further developed, as the case might be. So what courts have ended up doing in important cases is to assert the authority to rule on moral claims as a matter of common law. Lord Hoffman in the Court of Appeal suggests that courts are not meant to rule on morality: To argue from moral rather than purely legal principles is a somewhat unusual enterprise for a judge to undertake. It is not the function of judges to lay down systems of morals and nothing which I say is intended to do so. But it seemed to me that in such an unusual case as this, it would clarify my own thought and perhaps help others, if I tried to examine the underlying moral principles which have led me to the conclusion at which I have arrived.101

The decision in Bland is owed to their Lordships’ balancing exercise involving what they saw as competing principles of the sanctity of human life and self-determination. Lord Hoffmann has suggested that ‘[a] conflict between the principles of the sanctity of life and the individual’s right of self-determination may therefore require a painful compromise to be made. In the case of the person who refuses an operation without which he will certainly die, one or other principle must be sacrificed.’102 That approach by itself amounts to moral relativism, as it portrays the underlying moral value as relative and justifies its subordination to another moral or ethical value. Lord Hoffmann then continues this discussion by reference to the need to find the right balance between human autonomy and paternalistic approaches of public morality, which further confirms that what initially is portrayed as a moral dimension, gets eventually treated as a matter of interest-balancing, pretty much along the lines of utilitarianism.

Airedale NHS Trust v Bland [1993] AC 789, at 825–6. Bland (CA), 826.

101 102

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The position that positive law takes with regard to a particular matter is not always morally consistent. Lord Browne-Wilkinson has queried: How can it be lawful to allow a patient to die slowly, though painlessly, over a period of weeks from lack of food but unlawful to produce his immediate death by a lethal injection, thereby saving his family from yet another ordeal to add to the tragedy that has already struck them? I find it difficult to find a moral answer to that question. But it is undoubtedly the law and nothing I have said casts doubt on the proposition that the doing of a positive act with the intention of ending life is and remains murder.103

As Lord Goff has further commented, ‘whereas the law considers that discontinuance of life-support may be consistent with the doctor’s duty to care for his patient, it does not, for reasons of policy, consider that it forms any part of his duty to give his patient a lethal injection to put him out of his agony’.104 Or is the policy behind this approach to save public resources associated with the provision of medical care, or more generally to protect doctors by creating special regulation for them? The Conjoined Twins case involved a heavy moral dimension as to whether the separation of twins born together was permissible in order to preserve the life of one of them at least. The Court of Appeal’s starting point was that ‘[t]his court is a court of law, not of morals, and our task has been to find, and our duty is then to apply, the relevant principles of law to the situation before us’.105 Then, in a somewhat open-ended statement, the court suggested that ‘[t]he court is not equipped to choose between these competing philosophies. All that a court can say is that it is not at all obvious that this is the sort of clear-cut case, marking an absolute divorce from law and morality’.106 It may be queried whether, when a court says it is a court of law and not of morality, its use of or deference to some non-legal judgements such as medical, ethical or religious, or even to the public opinion, is compatible with the fact that courts are courts of law. The court’s determination of whatever the scope of legal matter apt for judicial determination is can be responsible for the use of some essentially non-legal considerations to decide on legal matters. The medical judgement presumably relates to what is sustainable with or without medical intervention; whether intervention should be performed that is not medical judgement anymore; and whether it is ethical or legal, and

105 LJ). 106 103 104

Bland (HL), 885. Bland (HL), 866 (per Lord Goff). Re A (Conjoined Twins: Surgical Separation) [2001] Fam 147, at 155 (per Ward Ibid., 239 (per Brooke LJ).

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a matter of policy. Whether such intervention is allowed by the law as it stands at the time of adjudication is a legal matter. In such cases one may speculate whether judicial policy inputs are hidden behind courts’ construction of broadly stated legal principles, for instance causation in relation to medical treatment, to protect medical doctors from prosecution. The Woolin case endorsed the ‘virtual certainty’ standard as a legal yardstick for determining the existence of mens rea in cases of homicide. However, the Conjoined Twins case suggests that the bona fide exercise of medical judgement is a complete negation of mens rea.107 The problem with this remains, however, that such medical judgement may well involve the defendant’s understanding that the patient’s death is a virtually certain consequence of his or her actions. It similarly remains a matter of speculation whether the outcome in Conjoined Twins was driven by the need to protect doctors or by the need to save at least one twin when there is choice, which factor does distinguish this case on facts, if not on principle, from Woolin. As a bottom line, however, both the decision to allow killing one twin to save the other and the decision to abstain from medical intervention and let both twins die from natural causes would be a decision that the legal system allowed the court to make. The court made a policy choice between the two options on the basis of ethical, moral or social considerations, and thereby exercised its law-making function, albeit partly at least on unarticulated grounds, which it was authorised to do as a common law court. And the matter was eventually disposed through the interest-balancing exercise. Ward LJ suggests that ‘[t]he reality here – harsh as it is to state it, and unnatural as it is that it should be happening – is that Mary is killing Jodie … How can it be just that Jodie should be required to tolerate that state of affairs?’108 One wonders whether this is a mere description of biological reality, or effectively the ascription of blame to Mary to project a greater moral basis for the court’s decision to allow medical intervention, projecting some interpersonal quarrel between the twins, as opposed to seeing their position as being owed to natural factors.

Further claiming that one twin’s death to save another ‘would not be the purpose or intention of the surgery’, and placing purpose and intention at the same level, in contrast to Woolin ([1999] 1 AC 82) where the central emphasis is on the distinction between purpose and intention. See further: ‘If so, the doctors intend to kill or to do that serious harm even though they may not have any desire to achieve that result. Unpalatable though it may be … to stigmatise the doctors with “murderous intent”, that is what in law they will have if they perform the operation and Mary dies as a result.’ Re A, 199 (per Ward LJ). 108 Ibid., 203 (per Ward LJ). 107

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The relationship between law and morality is essentially a problem of legal imputation, in the sense that the law determines what a protected value is. This is obvious from Ward LJ’s observations in Conjoined Twins: ‘The six-year-old boy indiscriminately shooting all and sundry in the school playground is not acting unlawfully for he is too young for his acts to be so classified. But is he “innocent” within the moral meaning of that word …? I am not qualified to answer that moral question.’109 In terms of real life, a six-year-old can cause harm the same way as adults can, but for the legal system it is crucial how the law classifies their conduct.110 And the judge in this case also reserves his moral judgement of this matter. The age issue is indeed pertinent, and produces several ethical and social dilemmas, in terms of how old a person should be able to marry, vote, contract, make a will or be liable for crimes. With regard to every single such issue, there is a conflict of view or interest of those who wish to be able to enjoy the relevant rights and standing upon reaching a particular age (conceivably earlier than the legal system allows this), and the opinions of those who think that it is too early for them to do so. As is fully compatible with Kelsen’s approach, by no rational consideration can it be proved that a view endorsing voting at sixteen or seventeen is right or wrong. The law here constructs a fiction of reasonableness by attaching particular rights and capacities to a particular age of a person; it does not reflect any natural reason of human sensibility or maturity, but merely the law-maker’s will to draw the boundary at the relevant point.

3.6

POLICY AND SOCIAL INTERESTS

Kelsen agrees with the opinion that it is by no means a deviation but a norm that pretentions by any social interest group in any society is a natural consequence of social egoism, resulting in a claim that such interest is most important to the well-being of the entire country.111 Coke had centuries earlier said very much the same thing, namely that ‘sometimes when the public good is pretended a private benefit is intended’.112 That need not be invariably true, but the law does often have the effect of endowing private interest with the status of public one, for much legislation benefits particular private interests (for instance in the matter of tax or social benefits). Dicey has given examples of courts having maintained anachronistic laws that were presumably contrary to the public opinion; and for a long time parlia Ibid., 203 (per Ward LJ). GT, 92 (suggesting that a murder committed by a person below the age of liability is not even a delict, even though it is imputable to such person). 111 Hauptprobleme, 479 (Kelsen agreeing with Rieker’s view). 112 Cited in CJ Hill, Intellectual Origins of the English Revolution (1965), 242. 109 110

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ment would eschew from legislative intervention.113 This shows that the legal system does not immediately mirror the relevant moral and social concerns. Roscoe Pound aptly explains the nature of the problem dealt with here, much the same as doing so from the opposite end of the doctrinal spectrum: A purely professional development of law, which is necessary in the long run, has certain disadvantages, and the undue rigidity to which it gives rise must be set off from time to time by receiving into the legal system ideas developed outside the legal thought … In the sixteenth and seventeenth centuries the common law, through purely professional development in the King’s Courts, had become so systematic and logical and rigid that it took no account of moral aspects of causes to which it was to be applied. With equal impartiality its rules fell upon the just and the unjust … the attitude of the law was unmoral.114

However, if the positivist legal science prioritises these matters as part of its central focus, then it risks becoming either apologetic or critical; that would no longer be a positivist science of law. To illustrate this phenomenon, as Hart does, ‘Bentham and Austin used it to attack judges for failing to decide penumbral cases in accordance with the growing needs of society’.115 Hart does require courts to take social policies into account. Assessing the merit of judicial decisions on that account is thus presented as part of the legitimate task of jurisprudence, which is also logically consistent with Hart’s treatment of ‘ought’ as a means of assessing the good or evil nature of the relevant legal system. More specifically, Hart suggests that: the conviction that it is fairer in a criminal statute to take a meaning which would jump to the mind of the ordinary man at the cost even of defeating other values, and this itself is a social policy (though possibly a bad one); or much more frequently, what is stigmatized as ‘mechanical’ and ‘automatic’ is a determined choice made indeed in the light of a social aim but of a conservative social aim’.116

The operational side of the distinction between common law and legislation is that the former has grown spontaneously through the disinterested judicial law-making that infers in casu solutions from abstract principles of justice or natural law, as was the case at earlier stages, or from principles applied in previous litigation; while the latter is a product of a targeted change in the legal system to respond to the socio-political agenda of the day. As stated by Dicey, ‘[t]he ideas of expediency or policy accepted by the Courts may differ considerably from the ideas which, at a given time, having acquired predom Dicey, 86–91 (examples discussed). Pound, American Journal of Sociology, 331, at 332–3. 115 Hart, Harvard LR, 612. 116 Hart, Harvard LR, 611. 113 114

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inant influence among the general public, guide parliamentary legislation’.117 But the difference is merely relative. As Pollock illustrates, everyone thinks he knows what happiness means but much work needs to be done on it by the legislator;118 similarly, ‘reasonableness’ is an open-ended concept which courts have to give a particular expression to with regard to particular cases. Therefore, there is an inherent similarity between parliamentary and judicial law-making in the sense that they both involve appeal to abstract values and principles and decisions as to the manner in, and extent to which, they should be turned into rules or principles of positive law. When the case involves acute moral issues, for instance one of medical termination of life, it was concluded by the House of Lords that ‘[e]xisting law may not provide an acceptable answer to the new legal questions which it raises’ and ‘it is for Parliament, not the courts, to decide the broader issues which this case raises’.119 For, as Lord Browne-Wilkinson has observed, ‘it is not legitimate for a judge in reaching a view as to what is for the benefit of the one individual whose life is in issue to take into account the wider practical issues as to allocation of limited financial resources or the impact on third parties of altering the time at which death occurs’.120 However, the judicial role cannot be completely evaded. As Lord Browne-Wilkinson continues, it is: imperative that the moral, social and legal issues raised by this case should be considered by Parliament. The judges’ function in this area of the law should be to apply the principles which society, through the democratic process, adopts, not to impose their standards on society. If Parliament fails to act, then judge-made law will of necessity through a gradual and uncertain process provide a legal answer to each new question as it arises.121

And then, a differentiated approach is again proposed as to the handling of these complex policy issues by courts and the parliament: The function of the court in these circumstances is to determine this particular case in accordance with the existing law, and not seek to develop new law laying down a new regimen. The result of this limited approach may be unsatisfactory, both in moral and practical terms, but it is for Parliament to address the wider problems which the case raises and lay down principles of law generally applicable to the withdrawal of life support systems.122

119 120 121 122 117 118

Dicey, 365; see further ibid., 366. F Pollock, History of the Science of Politics (1930), 118. Bland, 878 (per Lord Lowry). See also Bland, 890–1, 896 (per Lord Mustill). Ibid. Bland, 880 (per Lord Browne-Wilkinson).

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However, in the absence of the prospect of parliament’s immediate intervention, courts might as well take matters in their hands. The Herrington case was decided against the background that through the 1957 Act the parliament addressed the issue of occupiers’ liability, and imposed a ‘common duty of care’ on occupiers towards all persons who might lawfully come on to their land. But it pointedly omitted to alter the existing law as to trespassers. Lord Reid found: it exceedingly difficult to interpret the silence of Parliament in the 1957 Act with regard to trespassers in any other way than as an approval of the existing law with regard to them … I think I may be justified in attributing to indecision the silence of Parliament in 1957 with regard to trespassers in England.123

Lord Reid added that ‘Parliament must have decided that problems relating to trespassers should be left to be decided according to common law principles’. The broader policy adopted was that: It would not, in my view, be fitting for us to make fundamental changes in the law, according to our view as to what its terms and policy should be, when Parliament, apparently deliberately, has refrained from making such changes. We can, however, ensure that the tide of development of the common law is not unwarrantably impeded.124

Lord Wilberforce observed in the same spirit that: There might be some force in an argument that for this House to depart from (i.e., overrule) Addie’s case would, in effect, be to legislate where Parliament has abstained, but I can see no sense in supposing that when Parliament left the law alone as regards trespassers the intention was to freeze the law as, or as it was taken to be, in 1929. As this Act itself shows, what Parliament left alone in the case of trespassers, while displacing them in the cases of invitees or licensees, were the rules of common law. But the common law is a developing entity as the judges develop it, and so long as we follow the well tried method of moving forward in accordance with principle as fresh facts emerge and changes in society occur, we are surely doing what Parliament intends we should do.125

Lord Diplock also thought that the 1957 ‘Act did not touch the occupier’s duty to trespassers at common law. It left it to continue to be developed by judicial decision.’126 It is, then, for courts to identify whether parliament chose to remain silent on the relevant point; and at what level its intention or silence 125 126 123 124

Herrington v British Railways Board [1972] AC 877, at 897. Herrington, 903–4 (emphasis added). Herrington, 921. Herrington, 939.

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must be sought, identified or discarded: words of the statute, its overall design, or residual role of common law. In tackling situations where a major leap has to be made, courts nearly always end up with conflicting policy choices. When courts decline giving legal expression to the relevant policies, they invoke various considerations, such as unpredictable and unmanageable consequences, or the difficulty with laying down consistent legal standards to balance the essentially non-legal interests and considerations. As a classical instance of the law-making relevance of public policy, Lord Pearson’s observations in Herrington, addressing legal implications for trespassers, reveal a proactive judicial approach to developing the legal position by reliance on changing socio-economic conditions: the rule in [the previous] Addie’s case has been rendered obsolete by changes in physical and social conditions and has become an incumbrance impeding the proper development of the law. With the increase of the population and the larger proportion living in cities and towns and the extensive substitution of blocks of flats for rows of houses with gardens or back yards and quiet streets, there is less playing space for children and so a greater temptation to trespass. There is less supervision of children, so that they are more likely to trespass. Also with the progress of technology there are more and greater dangers for them to encounter by reason of the increased use of, for instance, electricity, gas, fast-moving vehicles, heavy machinery and poisonous chemicals. There is considerably more need than there used to be for occupiers to take reasonable steps with a view to deterring persons, especially children, from trespassing in places that are dangerous for them.127

No allusion was made to the role of parliament as the only organ who can change the law by re-arranging the hitherto accepted balance of interests as between owners and trespassers. Overall, the legal system could be used as a vehicle for adoption and implementation of socially desired policies and interests. But no legal system could be feasibly oriented towards securing this in an absolute manner. Even if it comes to something as indisputably socially valuable as the protection of human rights and criminality of murder, it is still the case that only those murderers will be convicted that are caught and then their crime is proved by evidence. So already at that first basic level, the legal system cannot secure any ready-made utilitarian outcome, and that community’s interest will not prevail in some cases.

Herrington, 929 (per Lord Pearson).

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Further discrepancy between the law and public interest is illustrated by Pound’s following observation: Our administration of punitive justice is full of devices for individualizing the application of criminal law. Our complicated machinery of prosecution involves a great series of mitigating agencies whereby individual offenders may be spared or dealt with leniently. Beginning at the bottom there is the discretion of the police as to who and what shall be brought to the judicial mill. Next are the wide powers of our prosecuting officers who may ignore offences or offenders, may dismiss proceedings in their earlier stages, may present them to grand juries in such a way that no indictment results, or may enter a nolle prosequi after indictment.128

In Kruse v Johnson, dealing with the prohibition to play music within a certain distance from a public road, the High Court initially adopted a somewhat similar perspective. The court confirmed, in the first place, that if a bye-law is adopted through the constitutionally determined procedure, it ‘ought to be supported if possible’, ‘benevolently interpreted, and credit ought to be given to those who have to administer them that they will be reasonably administered’. Arguably, ‘this involves the introduction of no new canon of construction’.129 And yet, the court is clear that the public interest does not mandate any vexatious or oppressive prosecution. Not all alleged violations will be prosecuted, and the legal system protects affected people from such conduct of authorities, as officials are bound by the rule of law and their discretion is not unlimited.130 In particular, the requirement of reasonableness and non-discrimination131 operates as an additional common law limit. Furthermore, the legal system, especially in England, will be oriented towards examining the legal side of the issue not underlying interests, among others through statutory interpretation. As Lord Diplock has specified, ‘Parliament, under our constitution, is sovereign only in respect of what it expresses by the words used in the legislation it has passed’.132 The Interessenjurispudenz premise is that the legislator wants a protection of interests and to satisfactorily deal with needs of life. But the legislator knows that he cannot foresee every detail and every situation. The judge needs to be a thinking assistant of the legislator, entering into his intentions.133 In

R Pound, An Introduction to the Philosophy of Law (1922), 134. Kruse v Johnson [1898] 2 QB 91, at 99 (per Lord Russell of Killowen). 130 Lord Bridge in Tower Hamlet also suggests that there is no such thing as free and unlimited discretion; Tower Hamlet [1988] AC 858, at 873 (per Lord Bridge). 131 Kruse, 99–100. 132 Black-Clawson [1975] AC 591, at 638. 133 Friedmann, 334–5. 128 129

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English law, this approach has been rejected by the House of Lords in Duport Steels, where it was observed by Lord Diplock that: These [matters involved in the case were] matters on which there is a wide legislative choice the exercise of which is likely to be influenced by the political complexion of the government and the state of public opinion at the time amending legislation is under consideration ... It endanger[ed] continued public confidence in the political impartiality of the judiciary, which is essential to the continuance of the rule of law, if judges, under the guise of interpretation, provide their own preferred amendments to statutes which experience of their operation has shown to have had consequences that members of the court before whom the matter comes consider to be injurious to the public interest.134

Lord Diplock continued that: at a time when more and more cases involve the application of legislation which gives effect to policies that are the subject of bitter public and parliamentary controversy, it cannot be too strongly emphasised that the British constitution, though largely unwritten, is firmly based upon the separation of powers; Parliament makes the laws, the judiciary interpret them. When Parliament legislates to remedy what the majority of its members at the time perceive to be a defect or a lacuna in the existing law … the role of the judiciary is confined to ascertaining from the words that Parliament has approved as expressing its intention, and to giving effect to it. Where the meaning of the statutory words is plain and unambiguous it is not for the judges to invent fancied ambiguities as an excuse for failing to give effect to its plain meaning because they themselves consider that the consequences of doing so would be inexpedient, or even unjust or immoral. In controversial matters such as are involved in industrial relations there is room for differences of opinion as to what is expedient, what is just and what is morally justifiable. Under our constitution it is Parliament’s opinion on these matters that is paramount.135

Finally, any perception of public interest could face the countervailing considerations relating to human rights and human dignity. It is now highly unlikely that this challenge will be faced by the UK judiciary along the lines of Liversidge v Anderson. It is more likely that fundamental constitutional rights could hold back the utilitarian outcomes that allegedly drive the legislation involved in the relevant case.136 Overall, the differentiation of roles of various branches of government is merely a rule of thumb, not a standard set in stone. When they have to,

134 Duport Steels Ltd v Sirs [1980] 1 WLR 142, at 157 (per Lord Diplock) (emphasis added). 135 Duport Steels, 157 (emphasis added). 136 On the institutional aspects of this problem see Ch. 4.

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courts will proceed to discuss policy considerations with a view to concluding whether the law should be developed further or not. Either way, thus, a judicial decision is seen to be an exercise in social policies, and a judge is inevitably seen as taking sides in the process of prioritising one particular social policy over a competing social policy. Kelsen’s take on this is rather different. The positivist starting point is that courts derive their authority from the law that confers to them adjudicatory powers and those that determine the rules to be applied by courts. Within the bounds of that conferral of such adjudicatory function, courts enjoy discretion, which lets the process of adjudication be characterised as part of law-making. Hence, the chief question the pure theory requires to ask and pursue is not whether the outcome of a judicial decision reflects a particular social policy, but whether it is an outcome of the kind that the court in question was entitled to reach. In other words, the pure theory does not propose that courts should or should not use social policies, but disposes of this question on terms of compatibility of the outcome of litigation with the terms of reference of the court before which that litigation was conducted. Kelsen explains that the purpose of legal rules is their validity. For the validity of a legal rule its stated or perceived purpose has no importance.137 This way rules and rights are separated from their underlying socio-political considerations that are seen to underlie them. It seems that in English law Kelsen’s approach has greater currency, as courts ordinarily distinguish between the rule and interests and values the rule protects, and the role of the judiciary is to apply rules in the first place. Obviously, interests and public policy may inform the mind of constitutionally empowered authorities and thus contribute to the process of the formation of the rules of positive law. But the validity of this proposition is qualitatively different from another, counter-factual, proposition that the same interests and policies as such confer or deny validity to the rules of positive law. Historically, English courts have been faithful to this distinction between law and other socio-political and ethical factors.

3.7

SPECIFIC HEADINGS OF SOCIAL POLICY

Legal policy, similar to foreign policy or monetary policy, refers to what ought to be enacted as law.138 As Bell suggests: Policy arguments may be defined as substantive justifications to which judges appeal when standards and rules of the legal system do not provide a clear resolution of a dispute. Unlike authority reasons, where reliance is placed simply on the clear Hauptprobleme, 14. PLT, 7.

137 138

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rules and principles established by statute or precedent, the appeal is to the values that could justify a rule, or an interpretation of it, and the argument centres on the balancing of conflicting values. Such substantive reasons can be both ethical and non-ethical.

Ethical reasons may refer to fairness which is valuable as such, while non-ethical reasons refer to other socially desired goals, for instance cleaner environment.139 The pure theory focuses on existing legal norms, not on policies that drive their enactment. Policies are essentially opinions, held by individuals, or social groups, including those represented to public authorities, on what the law should be. Once that law is enacted it becomes the product of the will of the State, as opposed to the opinions held by individuals and social groups. Some policies have little to do with the application of common law rules and principles, but deal with solely socio-political issues more suitable to be decided in the course of public debate and by elected authorities. To illustrate, in Bromley, Lord Wilberforce has observed, in a rather reserved manner, that ‘[t]here is indeed, and has been for some years, discussion, on the political level, as to whether, and to what extent, public transport, particularly in capital cities, should be regarded, and financed, as a social service, out of taxation whether national or local. We cannot take any position in this argument: we must recognise that it exists.’140 Common law courts are highly unlikely to base their decisions on policies like that. Instead, the case law is replete with instances of scepticism with regard to the development of the law by reference to proposed policies. It was concluded in one case that: A series of decisions based upon grounds of public policy, however eminent the judges by whom they were delivered, cannot possess the same binding authority as decisions which deal with and formulate principles which are purely legal.141

Another case suggests that: Your Lordships have been invited by counsel for the appellants to say that the rule is based on industrial and social conditions which have changed. Therefore, it is said, as it is the duty of the common law to mould and adapt itself from time to time so as to do justice under new and changing conditions, this is a case in which that duty should be fulfilled. It is indeed true that the common law is flexible and progressive, but it is so only subject to definite limitations.142

141 142 139 140

J Bell, Policy Argument in Judicial Decisions (1983), 22–3. Bromley [1983] 1 AC 763, at 817–18. Maxim-Nordenfelt Co. v Nordenfelt [1894] AC 535. Radcliffe v Ribble [1939] AC 215, at 245 (per Lord Wright).

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In some cases policy argument is articulated while in reality it is about the application of positive law to facts. For instance the fact that homelessness is not a defence to trespass as expounded by Lord Denning,143 can be more coherently explained on the ground that in law there is simply no such defence. The liability for homicide for illegal immigrants’ deaths can be supported by policy and ethical reasons as the court has suggested it was, but the key factor is that positive English law protects any human being from homicide without such exceptions, even in cases where the victim and the perpetrator were engaged jointly in unlawful activities.144 To some eyes at least, social policy can have connotations of voluntarism and arbitrariness. A too frequent and easy resort to policy may endanger uniform and predictable application of the law and produce an impression of selectivity. Therefore judges will generally be slow to endorse legal change or reinterpretation of the law on the grounds of policy. As it was pointed out in one House of Lords’ case: I do not think the appellants can be said to have advanced any sound reasons why your Lordships’ House should disturb a rule of law which has been so long recognised in our courts, and which, however anomalous it may appear to the scientific jurist, is almost certainly explicable on historical grounds.145

A rigid positivist approach has been stated in the same case by Lord Sumner: nor does it follow, in the case of a legal system such as ours, that a principle can be said to be truly a part of the law merely because it would be a more perfect expression of imperfect rules, which, though imperfect, are well established and well defined. Again, an established rule does not become questionable merely because different conjectural justifications of it have been offered, or because none is forthcoming that is not fanciful.146

Lord Simon of Glaisdale’s approach in Miliangos is so reserved as to hold that even the ‘view that an Act of Parliament may abrogate a rule of law by nullifying the reason for the rule does not justify the view that a rule may be judicially abrogated if changed circumstances appear to the court to have nullified the reason for the rule’.147

Southwark London Borough Council v Williams [1971] Ch 73. R v Wacker [2003] 1 Crim App. R. 22 (CA). 145 Admiralty Commissioners v S.S. Amerika (Owners) [1917] AC 38, at 41 (per Lord Parker of Waddington). 146 Ibid., 56–60. 147 Miliangos [1976] AC 443, at 476 (per Lord Simon); and further: ‘a long-established rule of law almost always gathers juridical adhesions, so that its abrogation causes dis143 144

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Lord Buckmaster held in Donoghue v Stevenson that where ‘[t]he law books give no assistance … I must therefore turn to the decided cases’.148 This is an insistence on the positivist method to identify common law on the matter, it being part of the judicial economy that every possibility to identify the law from its established sources must be used before resort will be had to policy. As, by contrast, Lord Atkin observed in an important policy statement: I confine myself to articles of common household use, where everyone, including the manufacturer, knows that the articles will be used by other persons than the actual ultimate purchaser – namely, by members of his family and his servants, and in some cases his guests. I do not think so ill of our jurisprudence as to suppose that its principles are so remote from the ordinary needs of civilized society and the ordinary claims it makes upon its members as to deny a legal remedy where there is so obviously a social wrong.149

Then comes Lord Bingham’s handling of policy elements in R v Hasan, dealing with duress claimed as a defence by those who associate themselves with criminals. The question was, according to Lord Bingham: ‘does the defendant lose the benefit of a defence based on duress only if he actually foresaw the risk of coercion or does he lose it if he ought reasonably to have foreseen the risk of coercion, whether he actually foresaw the risk or not? I do not think any decided case has addressed this question.’ Lord Bingham continued that, ‘since there is a choice to be made, policy in my view points towards an objective test of what the defendant, placed as he was and knowing what he did, ought reasonably to have foreseen. I am not persuaded otherwise by analogies based on self-defence or provocation for reasons I have already given.’150 Furthermore, ‘policy choices are to be made, towards tightening rather than relaxing the conditions to be met before duress may be successfully relied on’. On a more general plane, Lord Bingham has observed that: The policy of the law must be to discourage association with known criminals, and it should be slow to excuse the criminal conduct of those who do so. If a person voluntarily becomes or remains associated with others engaged in criminal activity in a situation where he knows or ought reasonably to know that he may be the subject of compulsion by them or their associates, he cannot rely on the defence of duress to excuse any act which he is thereafter compelled to do by them. It is not necessary in this case to decide whether or to what extent that principle applies if an undercover

locations elsewhere in the legal system. Parliament, on executive or expert advice, can allow for these: the judiciary can rarely do so’; ibid., 487. 148 Donoghue v Stevenson [1932] AC 562, at 567 (per Lord Buckmaster). 149 Ibid., 583. 150 R v Hasan [2005] UKHL 22, para. 38.

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agent penetrates a criminal gang for bona fide law-enforcement purposes and is compelled by the gang to commit criminal acts.151

On the other hand, the distinction between rights and interests applies to the adjudication process dealing with rights and interests where this distinction is also clearly maintained in English courts. Earl of Halsbury has noted in Driefontein that: you may say that it is because they are contrary to public policy they are unlawful; but it is because things have been either enacted or assumed to be by the common law unlawful, and not because a judge or Court have a right to declare that such and such things are in his or their view contrary to public policy.152

In Rodriguez, dealing with the situation where a firm carrying on business in London was dissolved on the outbreak of the war with Germany by reason of one of the partners having become an alien enemy, Lord Atkinson specified that: This rule of our law, like many others of our rules of law, was, no doubt, originally based upon, and embodied, certain views of public policy; but in this case, as in many others, the principles of public policy so adopted have, as numerous authorities conclusively show, crystallised, as it were, into strict and rigid rules of law to be applied, to use Lord Stowell’s words, ‘with rigour’. If that be so, as I think it clearly is, then the cases establish that it is wholly illegitimate for any judicial tribunal, which may disapprove of the principles of public policy so embodied in the rigid rule, to disregard that rule in any particular case, and base its decision on other principles of public policy of which it more approves. To do so would be to usurp the prerogative and powers of the Legislature.153

Lord Atkinson specified in the same case that: It is the province of the statesman, and not the lawyer, to discuss, and of the Legislature to determine, what is the best for the public good, and to provide for it by proper enactments. It is the province of the judge to expound the law only; the written from the statutes: the unwritten or common law from the decisions of our predecessors and of our existing courts, from text-writers of acknowledged authority, and upon the principles to be clearly deduced from them by sound reason and just inference; not to speculate upon what is the best, in its opinion, for the advantage of the community.

R v Hasan, para. 22. Janson v Driefontein Consolidated Mines, Ltd. (1902) AC 484, at 491–2. 153 Rodriguez v Speyer (1919) AC 59, 90. 151 152

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Some laws do indeed embody public good, ‘but we are not thereby authorised to establish as law everything which we may think for the public good, and prohibit everything which we think otherwise.154 The Sovfracht case concerned a dispute involving a ship owning company incorporated under the law of the Netherlands and having their principal place of business in Rotterdam, which chartered one of their vessels to the appellants. The dispute arose in 1939 and in 1940 Germany invaded the Netherlands. The House of Lords held that respondents resident in the Netherlands had thus become enemy aliens and lost the right to access English courts. Lord Wright has observed that ‘I feel, I confess, a natural repugnance to describing as enemies of this country those loyal and patriotic subjects of Holland who have had the misfortune to be forced to reside there after the German occupation, but this distasteful appellation has already been attached to all residents in Holland, as the Court of Appeal have rightly and, indeed, inevitably held, by Parliament under the appropriate Act and 1942 regulations’.155 And then: However high may be the patriotic fervour of that loyal and valiant race and their devotion to the Allied cause, the Dutch, so far as they are in Holland, must, until the day of deliverance, submit to the German yoke and also accept the comparatively minor affliction of being described for limited purposes and occasions as being in law enemies vis-a-vis Great Britain. Such is the effect of the common law of England.156

Then, there are cases where a statute directs administrative decision-makers to balance conflicting interests. In such situations courts may be spared the need to base their position on policies alone, because they might profess to be giving priority to such policies as are prioritised by the relevant legislation. The House of Lords in Bromley had to confront the need to construe the word ‘economic’ contained in a statute. Lord Diplock stated that ‘“Economic” in this context must I think mean in the economic interests of passengers and the ratepayers looked at together, i.e. keeping to a minimum the total financial burden that the persons in these two categories have to share between them for the provision by the L.T.E. in conjunction with the railways board and the bus company of an integrated and efficient public passenger transport system for Greater London’.157 The statute ‘requires the G.L.C. to strike a balance between the interest of the travelling public and the interest of the ratepayers’.158 156 157 158 154 155

Rodriguez, at 91–2 (per Lord Atkinson). Sovfracht [1943] AC 203, at 218–19. Sovfracht, 229. Bromley, at 830 (per Lord Diplock). Ibid., 841–2 (per Lord Scarman).

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Lord Scarman observed that: while the Act must be read as a whole, it is not to be construed in isolation from the duties of the G.L.C. as a local authority having the power (by precept) to raise a rate. As soon as the Act is considered in this context, a vital feature emerges. The G.L.C. owes not only a duty to the travelling public of Greater London but also a duty to the ratepayers from whose resources any deficit must largely be met. Understandably, the appellants have emphasised the first, and Bromley the second. But they co-exist. Where, therefore, the general duty of the G.L.C. is spelt out in section 1, it is necessary to bear in mind that it breaks down into two duties owed to two different, though overlapping, classes. ‘Economic’ in section 1 must, therefore, be construed widely enough to embrace both duties. Accordingly, I conclude that in section 1(1) of the Act ‘economic’ covers not only the requirement that transport services be ‘cost-effective’ but also the requirement that they be provided so as to avoid or diminish the burden upon the ratepayers so far as it is practicable to do so. Section 1(1), therefore, requires the G.L.C. to strike a balance between the interest of the travelling public and the interest of the ratepayers.159

The court here not only emphasises that the use of a particular term in the statute has to be premised on the particular manner in which conflicting interests are balanced, but also that such balancing exercise is, in effect, supervised and validated by the court itself. The case of Rookes v Barnard dealt with the earlier position of courts that the tort of intimidation, giving rise to an ‘unfamiliar and peculiar cause of action’ having roots in ‘cases of physical violence and threats of violence’, should not be extended to cover threat to break a contract. Lord Reid disagreed, suggesting that ‘[i]ntimidation of any kind appears to me to be highly objectionable. The law was not slow to prevent it when violence and threats of violence were the most effective means. Now that subtler means are at least equally effective I see no reason why the law should have to turn a blind eye to them.’160 Here his Lordship seems to operate within the scope of the existing rule, in terms of what the term ‘intimidation’ should or should not cover. Moreover, he suggests a criterion to delimit the scope of the intimidation rule to the effect that: ‘We have to tolerate intimidation by means which have been held to be lawful but these [i.e. ones he considers not to be lawful] I would stop.’ Lord Reid held that parliament had legislated the way that leaves open the development of common law as to whether a particular conduct should be unlawful. To ‘extend protection of interference to all cases no matter how

Ibid., 841 (per Lord Scarman); see also Lord Diplock, ibid., 829 (‘The conflict of interest lies between passengers and the ratepayers.’) The argument in that case even was that ‘[t]he G.L.C. did not have regard to the interests of the ratepayers whom they treated as a milch cow’; ibid., 809. 160 Rookes v Barnard [1964] AC 1129, at 1149. 159

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unlawful the means employed is something that I cannot think Parliament could have intended and therefore a construction of the section which I would only accept if its words are incapable of any other’. The statute provided immunity ‘provided that there is no further element of illegality, such as intimidation’.161 Lord Devlin stated that, ‘[g]ranted that there is a tort of intimidation, I think it would be quite wrong to cripple the common law so that it cannot give relief in these circumstances. I think it would be old-fashioned and unrealistic for the law to refuse relief in such a case and to grant it where there is a shake of a fist or a threat to publish a nasty and untrue story’. The relationship between policy considerations and the content of a statute was discussed thus: It is easy now to see that Parliament in 1906 might have felt that the only way of giving labour an equality of bargaining power with capital was to give it special immunities which the common law did not permit. Even now, when the scales have been redressed, it is easy to see that Parliament might think that a strike, whether reprehensible or not, ought not to be made a ground for litigation and that industrial peace should be sought by other means. It may therefore as a matter of policy be right that a breach of contract should not be treated as an illegal means within the limited field of industrial disputes. But can your Lordships get that out of the words of the Act? Section 3 gives immunity from action for procuring a breach of contract but not for the breach itself.162

It was further observed that, ‘it may be that pragmatically and on grounds of policy the line should be drawn between physical and economic pressure. But that is for Parliament to decide.’ In an earlier case of Vacher Lord Macnaghten has observed that: Now there is nothing absurd in the notion of an association or body enjoying immunity from actions at law. Some people may think the policy of the Act unwise and even dangerous to the community. Some may think it at variance with principles which have long been held sacred. But a judicial tribunal has nothing to do with the policy of any Act which it may be called upon to interpret. That may be a matter for private judgment. The duty of the Court, and its only duty, is to expound the language of the Act in accordance with the settled rules of construction. It is, I apprehend, as unwise as it is unprofitable to cavil at the policy of an Act of Parliament, or to pass a covert censure on the Legislature.

Rookes v Barnard, 1177–8. Rookes v Barnard, 1219.

161 162

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Lord Atkinson was of the opinion that: If the language of this sub-section be not controlled by some of the other provisions of the statute, it must, since its language is plain and unambiguous, be enforced, and your Lordships’ House sitting judicially is not concerned with the question whether the policy it embodies is wise or unwise, or whether it leads to consequences just or unjust, beneficial or mischievous.163

On its face, both the above cases are about the adherence to positive law and the reluctance to influence it by policy considerations. However, the accusation to the contrary is not unheard of either. As Friedmann has commented on Rookes v Barnard: the remarkable fact is that what was clearly a major policy decision, a deliberate and concerted effort on the part of the unanimous House of Lords to neutralise the essential provisions of the Trade Disputes Act of 1906 and to put a major legal obstacle – in the form of damage liability – in the path of typical union activities in a labour dispute, did not make any allusion to policy issues. It is perhaps of its outstanding social and political significance that the Law Lords chose to couch their judgments in analytical legal phraseology.164

Factually accurate as this may be, it only proves that resort to policy argument is not an inevitable precondition for English courts to arrive at decisions that appear to be innovative or unexpected. Their law-making power under common law is wide enough to allow them to develop the law with or without policy argument, under the guise of interpretation and application of existing rules. That is the case simply owing to the fact, much emphasised in Kelsen’s pure theory, that rules of positive law do not have to be expressive of or coincide with policies and values favoured by a party to the case or any segment of the society’s population. The task of the judge is to apply positive law and not subvert it by the use of policy argument; and moreover, this expresses the established consensus that in the matters of industrial and economic relations, courts will not second-guess the decisions made by political branches of the government. Courts will not, on this approach, form a view or challenge the parliament’s prioritisation of one policy interest over another. Generally the pattern that is manifested here is that, as common law and statute law are developed through separate processes, courts do not regard as part of their own constitutional authority to challenge the parliament’s use of policies, but that does not affect their authority to go through policy reasons as part of the development of common law.

Vacher and Sons Ltd. v London Society of Compositors [1913] AC 107. Friedmann, 485.

163 164

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In both cases, however, the machinery of the law works, autonomously, and itself determines the way in which and the extent to which those non-legal considerations are taken on board. This is broadly compatible with the thesis of the pure theory that judicial law-making is an act of judicial will. The system and process of English law validate the pure theory’s thesis that the law is a free-standing system of norms whose validity and binding force never depend on social, moral or ethical factors. The legal system, one embodying the steadfast process of concretisation and development, itself sets its own criteria and requirements through which it is prepared to take in socio-political, ethical and other non-legal policy considerations. The law is never isolated from those non-legal considerations but, in relations between the two, it is the legal system that sets the rules and calls the shots.

4. Constitution and normative hierarchy 4.1

THE FRAMEWORK OF THE NORMATIVE HIERARCHY

The pure theory sees no cardinal distinction between the task of law creation and that of law-application. Within the normative hierarchy arrangement that underlies any and every legal system, creation of any law is premised on the application of that law which enables the first law to be created. Similarly, any application of a general rule by judicial and administrative authorities involves the creation of specific legal rules to give effect to that general and hierarchically superior rule.1 ‘A legal norm [one contained in an act of parliament] is valid because it has come into being in the way prescribed by another norm. This is the principle of validity peculiar to positive law.’ Laws are valid ‘because they were created in accordance with the constitution’.2 Therefore, there can be no extra-legal basis for any person’s or entity’s legal rights, entitlements or duties, as every legal rule authorising those itself derives from the authority conferred to the relevant State organ by another legal rule.3 Consequently, ‘law regulates its own creation inasmuch as one legal norm determines the way in which another norm is created’.4 There is an intimate connection between the hierarchy of norms and the unity of a legal system, which means that all rules operating as part of the particular legal system have to derive from the single ultimate source and form part of the single and unitary system of commands and prescriptions. The legal system itself determines which rule has to prevail and which rule has to give way should there be a conflict between the two legal rules. Only this way can any legal system ensure that individuals will not be subjected to two mutually

H Kelsen, Introduction to the Problems of Legal Theory (1992) (‘PLT’), 72. H Kelsen, The Pure Theory of Law and Analytical Jurisprudence, 55 Harvard Law Review (1941), 44 (‘HLR’), 62–3. 3 Even where, as focused upon in Ch. 3, courts develop the law in view of social policy or ethical considerations, the rules produced in this context derive their status and authority conferred to the courts under the constitution. 4 H Kelsen, General Theory of the Law and State (1940) (‘GT’), 124, 126. 1 2

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exclusive regulations of their rights and obligations. For, this latter outcome would be the very negation of the unity of the legal system. Kelsen explains that ‘[l]egal norms may have any kind of content’,5 in the sense that the superior norm does not specifically and affirmatively determine the material content of the lower norm. However, the superior norm still sets the limits on the content of lower norms. Discretion is therefore involved at every level of the hierarchy of norms, whether in relation to legislation, administration, or adjudication. Discretion is a tool for the concretisation of the law that is made available by the legal order to all branches of the government and at all levels of their hierarchy. Thus, ‘[t]he task of deriving from a statute the correct decision or the correct administrative act is fundamentally the same as that of endowing the constitution with a content of correct statute’. For, ‘[o]ne can as little derive from the constitution the correct statutes by interpretation as by interpretation from the statute derive correct decisions. Certainly there is a distinction between the two cases, but it is a quantitative, not a qualitative distinction – in that the legislator is materially less conditioned in his operation than the judge, is relatively more free to make law’. And, ‘the making of the individual norm, involved in putting the general norm into effect, is a function of the will’.6 Consequently, ‘[t]he doctrine of the hierarchic structure of law conceives of law as in motion, in a continuous process of spontaneous self-creation. It is a dynamic as distinguished from a static view of law.’7 In a way, it has to be that way because public authority in many instances and at every level involves the element of a decision-maker’s freedom of decision. ‘Insofar as his norm-creating function is left to his discretion, the legal authority may be, and actually is, determined by other than legal norms – and insofar his function has a political character; whereas it is a legal function insofar as it is determined by legal norms.’8 Thus, law-making becomes a free act of will, to a certain extent open to socio-political inputs driven by policies and outcomes desired or preferred by the law-maker. According to the pure theory, legislation covers activities by the legislature and the executive branch, as long as it consists of prescribing general norms.9 Under this approach, the pure theory would classify as legislation both primary and secondary legislation, but place them at different levels of hierarchy. GT, 113. H Kelsen, The Pure Theory of Law, Part II, 51 Law Quarterly Review (1935), 517 (‘LQR’), 526–7. 7 LQR, 531. 8 H Kelsen, Science and Politics, 45 American Political Science Review (1951), 641 (‘APSR’), 654. 9 GT, 257. 5 6

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When the delegation of law-making to the executive takes place, ‘[t]he centre of gravity in law-making shifts from the general legislator to the individual legal administrator’.10

4.2

THE ESSENCE OF A CONSTITUTION

Since Austin’s and Dicey’s emphasis on the law-free nature of the legislative sovereign, the legislature-centred perception of the British constitution has gained significant currency. Goodhart has suggested, for instance, that ‘[t]he structure and the authority of Parliament are based on a collection of ancient and modern rules which, taken together, constitute the constitution, but they are based on recognition and not on a non-existent command’.11 Goodhart continued that ‘[i]n a simple unitary State such as Great Britain it is possible to ignore the importance of constitutional law because there is rarely a dispute concerning any of its provisions, and when such a dispute does arise it tends to be regarded as a political rather than a legal problem’. This proposition is no longer feasible in present times when the nature of the British constitution is subject not only to a heavy doctrinal debate but the need to understand it is increasingly observed in judicial practice. The greater the divisions of social opinion and interests are on any particular matter arising before the courts, the greater the need to understand what the constitution requires or mandates with regard to any relevant matter. Against the background that other legal theories have barely come out with a coherent articulation of the structure and underlying ideas of the British constitution, the pure theory requires addressing it and proposes a coherent methodology to that effect. It is most important first to see what the constitution means and what distinct function it performs in the legal order. The pure theory proposes the meaning of the constitution which is reflected in all legal systems. The UK’s constitution may be an unwritten one, but a constitution it still has to be. Furthermore, constitution is a product of law, not of political ideology, and the pure theory proposes to address the actual legal constitution not one desirable from any ideological point of view. The methodological upshot is that the pure theory presumes the existence of the constitution as the comprehensive framework for arranging all law-making competence within the legal system. Whenever the legal system has more than one way of creating law, for instance statutory law and unwritten law, there

LQR, 530. Sir John Laws, The Common Law Constitution (Hamlyn Lectures 2014), 13.

10 11

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must be a constitutional framework within the system that determines how they all originate, operate and mutually interact. According to Dicey, constitutional laws are those that ‘tell upon the distribution of sovereign power’.12 Sir John Laws suggests similarly that constitutions, written or unwritten: contain definitions of the powers and duties of the sovereign, and the exercise of these powers will mark the reach of individual freedom in the state. Such laws make the constitution … But written constitutions of the modern age typically contain much else besides. These are usually prescriptions, often framed in terms of rights, for the proper exercise of the sovereign’s powers and duties. Such prescriptions are not a necessary condition of a constitution properly so called; but where they are found, they take their place among the constitution’s provisions.13

It just happens empirically that in most jurisdictions this ultimate level of legislation is specified in written constitutions. However, on the methodology of the pure theory, whichever source of English law is responsible for such imputation of law-making character of the relevant organs of public authority, that source of law must be deemed to embody the current constitution of the UK. Kelsen explains that ‘the material constitution, that is to say norms regulating the creation of general norms and – in modern law – norms determining the organs and procedure of legislation, is an essential element of every legal order’.14 Constitution in the material sense consists of rules that regulate creation of general legal rules, including statutes, and also whereby law-making organs are established.15 That will in many legal systems be regulated by the formal (written) constitution, which can include any content whatsoever and is adopted through specially prescribed procedures. Formal constitution may include the multitude of norms that have nothing to do with the content of the material constitution and, by contrast, on some occasions fail to include some elements of material constitution.16 On its part, ‘[t]he material constitution chiefly determines by what organs and through what procedure the general norms are to be created. Usually, it leaves the contents of these norms undetermined’.17 Inherently constitutional laws in the absence of a written constitution would, for the purpose of the pure theory, be those which explain the ultimate basis for the law-making power; those laws beyond which there are no more rules AV Dicey, Law and Public Opinion in England (1926), 55. Laws, The Common Law Constitution, 5. 14 GT, 125. 15 GT, 124, 258, 267. 16 GT, 260. 17 GT, 130. 12 13

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of positive law. The material constitution, not codified in a single instrument, then institutes both legislative and non-legislative law-creating procedures. This runs into a broader thesis that ‘law regulates its own creation’, which indicates that the ultimate basis on all those above issues must be located in one or another source of law. Every legal system has its material constitution, because every legal system recognises some ultimate sources and organs from which rights and duties of individuals and of public authorities derive. An absolute monarchy, too, has the constitution which provides for almost unlimited authority of a monarch to issue legislative norms and exercise coercion.18 A constitution may indeed authorise a single qualified individual or a body of qualified individuals to create legal norms.19 Constitution in the material sense is an inevitable element on which juridical science must rely in order to cognise the statics and dynamics of the relevant legal order. Therefore, the juridical science identifies the material constitution regardless of what formal designation the relevant legal order assigns to particular pieces of legislation or to other sources of law. The central question to be asked is from where the law-making process ultimately derives its ultimate basis and legitimacy. Constitution is ‘a complex of norms which regulates primarily the organs and the procedure of legislation, and which includes also the norm by which custom is recognized as a creator of law. To be included within this complex, a norm need not be found in a written constitution – it may be a part of the unwritten constitution created by custom.’20 Furthermore, ‘[t]he constitution itself can, as a whole or in part, be unwritten, customary law. Thus it may be

GT, 264 (contrast this with the 1789 French declaration on the rights of a man and a citizen); similarly Sir John Laws ‘would deny the term “constitution” to so coarse a state of affairs’ when ‘the people are ruled by the brute commands of whoever is the strongest leader from time to time’, Laws, The Common Law Constitution, 4. It seems, however, that if a legal order authorises such brute commands to be issued by authorities, then that too is part of the relevant material constitution on which that legal order is premised. It is in this sense that Blackstone’s observation about ‘that absolute despotic power, which must in all governments reside somewhere’ is correct. For a rather simple reason that, potentially at least, every legal system could turn into a despotic order because it has enough power to do so, every legal system contains in itself a potential of evolving, or better said degenerating, into a despotic order. Some legal orders have material and formal constitutions that distribute public authority so that such degeneration is rendered rather difficult, while other legal orders witnessed in history did not have such constitutional safeguards, or had ones that were overcome with varying degrees of difficulty. 19 The Function of a Constitution, 113. 20 HLR, 62. 18

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due to custom that custom is a law-creating fact.’21 Custom can create law only if the material constitution institutes custom, alongside with legislation, as a law-creating procedure. ‘Custom has to be, like legislation, a constitutional institution.’ At times constitution may be composed partly of statutory and partly of customary rules.22 Kelsen explains that ‘[i]f a legal order has a written constitution which does not institute custom as a form of law creation, and if nevertheless the legal order contains customary law besides statutory law, then, in addition to the norms of the written constitution, there must exist unwritten norms of constitution, a customarily created norm according to which the general norms binding the law-applying organs can be created by custom’.23 This issue may arise when confronting some common law legal systems with written constitutions, but it does not acutely arise with regard to the UK legal system owing to the absence of a written constitution. There is no need, as with other legal systems, to look beyond a written constitution to rationalise either the ambit and content of the UK’s constitution or the content of the basic norm of the UK’s legal system. In Britain, which has no formal constitution, the material constitution has the character of customary law and therefore there exists no difference between ordinary and constitutional laws.24 This is confirmed by the analysis of Sir William Holdsworth, suggesting that ‘[t]hroughout the course of English history a large part of our constitutional law has been made by judicial decisions; for our constitutional law is simply a part of the common law’.25 And ‘those parts of our constitutional law which deal with the rights and duties of the subject, depend so largely on case law, and to a very great extent on case law made since the Revolution’.26 As Sir John Laws observes, Parliament has adopted a number of pieces of constitutional legislation; yet their meaning is mediated to individuals through common law. ‘The unifying principle of our constitution is the common law.’27 Consequently, with regard to the UK, the question what is the UK’s current unwritten constitution is not the same as the question what contents would 21 GT, 126; goes further by suggesting that ‘if a legal order has a written constitution which does not institute custom as a form of law-creation, and if nevertheless legal order contains customary law besides statutory law, in addition to the norms of written constitution, there must exist unwritten norms of constitution, a customarily created norm according to which general norms binding the law-applying organs can be created by custom’. 22 GT, 126, 260. 23 GT, 126. 24 GT, 125. 25 W Holdsworth, A History of English Law, vol. 6 (1924), 263. 26 Holdsworth, vol. 6, 264. 27 Laws, The Common Law Constitution, 6.

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be included in a written constitution should the UK at some point of time adopt it.28 There is no formal constitution in the UK as an instrument adopted through specially prescribed procedures. Nor are there written instruments that determine the ultimate basis of legislation or any other law-making activity. Thus the UK’s unwritten constitution can be identified only as a material constitution. For the purposes of the pure theory, we need to focus only on the indispensable elements of the unwritten constitution related to the ultimate authority of law-making. The fundamental aspects of the relationship between various branches of the government are inevitably constitutional issues. The authority which adopts and amends the constitution is called the “constituent” power, in contradistinction to legislative power. With regard to written constitutions that may be a two-thirds majority or a special amendment procedure, or involve referendum or assent by constituent units of a federal State.29 In the conditions of the unwritten constitution, as the analysis below demonstrates, such constitutional authority is shared between the parliament and the courts.

4.3

AMENDMENT OF CONSTITUTIONS AND CONSTITUTIONAL LEGISLATION

Given that all acts of parliament have the same force and are adopted with the same majority, an act of parliament cannot, by itself and by virtue of the mere fact of having been adopted by the parliament, form a source of constitutional rules or provide an element of the written part of the constitution. Common law thus confers constitutional character to certain statutes, according to the criteria which depend not on the will of parliament but on judicial determinations. The pure theory’s position is that the constitution should be more difficult to amend, and that it is more difficult to change if it is embodied in a written document.30 In States without written constitutions, such as England, there is no difference between constitutional and ordinary laws, because all laws were adopted through the same procedure. Material constitution has the character of customary law.31 This may give an initial impression that the unwritten

Harris offers a more restrictive account: ‘In any national legal system the constitution contains, at least, authorisations to create all the general norms that can be created within the system, and these in turn authorise the creation of individual norms’. JW Harris, When and How does the Grundnorm Change? 29 CLJ (1971), 109. 29 GT, 259. 30 GT, 125. 31 GT, 125. 28

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constitution of the UK, consisting of common law rules, can be amended by the parliament the same way as it can amend any statute. However, over time, common law courts have worked out a number of methods to protect the unwritten constitution from legislative encroachments. One major safeguard is provided by the process of statutory interpretation through which the courts interpret the legislation so as to make it compatible with the unwritten constitution. This approach covers, as we shall see below, legislative provisions that may be seen either to encroach on fundamental human rights or to oust the common law jurisdiction of courts. A further level of constitutional security has been provided by the reasoning of Laws LJ in Thoburn, whereby some characteristics of the statutes separate from the will of parliament enacting them have been emphasised. Laws LJ has observed that: We should recognise a hierarchy of Acts of Parliament: as it were ‘ordinary’ statutes and ‘constitutional’ statutes. The two categories must be distinguished on a principled basis. In my opinion a constitutional statute is one which (a) conditions the legal relationship between citizen and State in some general, overarching manner, or (b) enlarges or diminishes the scope of what we would now regard as fundamental constitutional rights. (a) and (b) are of necessity closely related: it is difficult to think of an instance of (a) that is not also an instance of (b). The special status of constitutional statutes follows the special status of constitutional rights.32

Such qualification of those acts of parliament as constitutional statutes is a logical step towards rationalising their constitutional status, and doing so on grounds other than their adoption by a simple parliamentary majority. They remain acts of parliament, but common law determines that they are different from other acts of parliament in that they possess constitutional status. These laws, such as the 1998 Human Rights Act, cannot be subjected to the implied repeal the way that other statutes are. They are still not completely exempted from the majority decision-making patterns, but the reasoning in Thoburn has emphasised the constitutional reality of their difference from ordinary statutes as much as it could ever be possible in the absence of a written constitution that would expressly distinguish between constitutional and ordinary legislation and subject them to different procedures of amendment.

Thoburn [2003] QB 151, para. 62 (per Laws LJ).

32

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91

CONSTITUTIONAL STATUS OF THE PARLIAMENT

In some written constitutions parliaments are authorised to legislate on certain specified matters, while in other written constitutions parliaments are authorised to legislate on any matter whatsoever, in a way pretty much similar to Dicey’s description of the UK parliament’s authority to make or unmake any law whatsoever. Another similarity between written and unwritten constitutions is that if parliaments do not adopt the law required to be adopted by the constitution, there will be no legal consequences.33 In that sense all legislatures are supreme or ‘sovereign’ and the position of the UK parliament is pretty much the same as that of any other national parliament. Written constitutions contain clauses enabling, requiring or prohibiting the adoption of a particular legislation, or ones determining the size of the majority required for the adoption of a particular piece of legislation; with regard to the UK parliament there is no such express constitutional regulation. The extent to which the parliament can legislate on constitutional matters has been determined through the jurisprudence of common law, which has at times endorsed the freedom of parliamentary law-making and at times set limits to it: re-organise its decision-making patterns,34 regulate the period of legislature, but not bind future parliaments. Parliament can decide on its organisation and procedure.35 But these are issues qualitatively different from that of the legislative omnipotence with regard to common law and rights of subjects. If there is no limit on the legislative authority in unwritten law, then the UK has no constitution. Kelsen explains that, in any legal order, constitution exists only insofar as it cannot be changed by ordinary legislation; this is also the basis on which a piece of legislation can be denoted as unconstitutional; as opposed to being an issue of conflict between older and newer statute.36 As ordinarily constitutions endow parliaments with the plenary legislative authority, the adoption of certain laws has to be prohibited expressly if parliament is to be prevented from enacting them.37 Therefore, on the account of pure theory, if the UK has the constitution which the parliament cannot change, then an act of parliament could be unconstitutional when contradicting such constitution; if the UK has no such constitution, then an act of parliament could never be unconstitutional and parliament is genuinely omnipotent.

35 36 37 33 34

GT, 262. Jackson v Attorney General [2005] UKHL 56. Pickin v British Railways Board [1974] AC 765. GT, 262–3. GT, 264.

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Kelsen’s insistence that the law regulates its own creation, and that the constitutional organs’ authority has to derive from legal rules only, enhances the perspective that if the legislative supremacy does not derive from any piece of legislation, then it has to derive from the common law constitution, as there is no other primary or original source of law in English law. Kelsen addresses the status of legislative organs as part of the discourse that has been generated in the nineteenth century and in his time still yielded much relevance; namely whether parliaments are organs of the State proper or ones merely representing society, public opinion and social interest to advise the monarchs which traditionally and over centuries have been viewed as embodiments of the State.38 When, however, democracy as an organising factor takes over, parliaments obviously become central elements of constitution as they manifest democratic representation. While the British parliament functioned in such quality since earlier than its continental counterparts, the more genuine or extensive enhancement of the representation of popular will is linked with the French Revolution of 1789 and the British electoral reform of 1832. Only on the basis of a specific legal rule is it possible to see parliament as a State organ. Being a State organ presupposes a rule imputing to that organ the character of the organ.39 The key issue in English law thus is the rule that imputes to the parliament the status, powers or characteristics that are ascribed to it by various doctrinal or political claims. The fact that in England, legislative supremacy of the tripartite legislature has been politically recognised for centuries and the way in which the legal recognition of parliament’s status and authority has taken place in the legal system are, thus, two different things. While the rule determining parliament’s legislative authority is undoubtedly of a constitutional character, such authority cannot be legally self-sustaining. For, parliament cannot confer legislative sovereignty to itself, some rule of English law has to, and it can only be a rule of common law. In Austin’s model, there is no one person or entity to issue commands to the sovereign parliament, and no positive law that determines the scope of legislative powers; therefore there is no constitution as part of positive law. Constitutional law is not law properly so called. Austin’s ultimate point of reference is the ‘habitual obedience’ of prescriptions made by one particular organ – the Queen in Parliament.40 However, this does not divulge who obeys the parliament – the population or courts – and on what conditions; and what exactly is being habitually obeyed – which all must be answered on the basis independent of the will

38 H Kelsen, Hauptprobleme der Staatsrechtslehre Entwickelt aus der Lehre vom Rechtssatze (1923) (‘Hauptprobleme’), 465ff, 470–1. 39 Hauptprobleme, 466, 468. 40 J Austin, The Province of Jurisprudence Determined (1954), 59.

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of that one single organ. Obedience is inherently a matter of fact, while a duty to obey is inherently a matter of law and has to follow from an established rule under the relevant source of positive law. If the meaning of statutory provisions falls to be construed by courts, then the parameters of that ‘habitual obedience’ also fall to be determined by courts. Sir William Wade suggests that ‘[t]he rule of judicial obedience is in one sense a rule of common law, but in another sense – which applies to no other rule of common law – it is the ultimate political fact upon which the whole system of legislation hangs’.41 However, if it is a common law rule anyhow, what is the distinct jurisprudential relevance of it being a political fact? If parliamentary sovereignty is a mere political fact, then it is not grounded in any source of the law. In this case, and on the pure theory’s terms, the law in the UK does not regulate its own creation. Unless the source of law showing the ultimate basis of law-making can be identified, a political fact alone cannot specify the scope of parliamentary sovereignty, because fact is about existence of a thing, not about its quality; and on practical terms the ‘political fact’ thesis hardly alters anything because its legal implications still fall to be determined by courts. An alternative that common law courts would be giving legal effect to political facts, simply because they are political facts, is unsustainable and unrealistic. On the utilitarian account, thus, much of the status of the parliament becomes a political, not legal, issue: the legislature informed by political preferences of the electorate, enacts laws of any content, not being bound by any authority on that matter, and its laws are in fact obeyed by the population. One wonders whether the law has anything to say on this rather complex pattern, or whether it is entirely, or prevailingly, extra-legal. The need for such query arises not merely out of principle but also out of the nuance of this very same pattern. For, the population still ends up obeying not what they wish and desire but what the sovereign parliament tells them to do. Parliament constitutionally enjoys autonomy. As Lord Bingham has clarified in A v Secretary of State: Those conducting the business of democratic government have to make legislative choices which, notably in some fields, are very much a matter for them, particularly when (as is often the case) the interests of one individual or group have to be balanced against those of another individual or group or the interests of the community as a whole.42

HRW Wade, The Basis of Legal Sovereignty, 13 CLJ (1955), 172, at 188. A (FC) and others (FC) (Appellants) v Secretary of State for the Home Department (Respondent) [2004] UKHL 16, 16 December 2004, para. 38. 41 42

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Therefore, the range of legislative acts and policy decisions parliament can adopt depends not on the popular will which is responsible for the election result but on the constitutional rule that confers the legislative competence to the parliament. Even on political terms, thus, there is a significant discrepancy in this politically oriented pattern, consisting in the latent or actual disagreement between the parliament and the population. Unless the whole institution of the legislative of supremacy is firmly paced within the context of positive law, there can be no meaningful guide as to resolving such political disagreement. The positivist analysis can show that any constitutional principle or arrangement whatsoever, including those deemed to be giving effect to the majority will and dictates of public utility, could fall short of being a mirror-image of its perceived aims. Kelsen highlights that precisely the arrangement of a tripartite sovereign is inimical to the viability of the majoritarian political agenda. It is a constitutional principle that State will is derived from the State will constituted by all three elements – monarch and two houses of parliament – not from one single chamber that may be a carrier of a particular social agenda, interest or sentiment.43 And, in the UK it is not an infrequent occurrence these days for the House of Lords to actively step into the legislative process that could, at times, be seen as obstruction of the will of the House of Commons that is deemed to represent the majority of the population. It is both methodologically incorrect and historically inaccurate to suggest that one single organ, however important in the overall constitutional model, can be a constitutional sovereign. The sovereign, according to the pure theory, has to be identified at the level where the entire legal system is constituted, not in the image of one single, however important constitutional organ such as the parliament. As Kelsen critiques Austin: ‘In the norms of positive law no such thing as a “sovereign,” a person or group “incapable of legal limitation,” can be found.’ The central difficulty with Austin is that he ‘deals with the concept of a sovereign which is not the state but only an organ of the state’.44 Kelsen explains sovereignty as the original (ursprünglich) and not further derivable public authority (nicht weiter ableitbare Herrschersgewalt),45 not as the absolute authority over those who actually constitute the source of that authority. Sovereignty thus goes to the origin of public authority, not necessarily to its scope and reach. Kelsen contradicts the thesis that sovereignty means the unlimited authority for its owner, observing that the unlimited and illimit-

Hauptprobleme, 478–81. HLR, 64. 45 H Kelsen, Das Problem der Souveränität und die Theorie des Völkerrechts (2nd edn, 1928, reissue Scientia Aalen, Tübingen 1960) (‘Souveränität’), 56. 43 44

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able State would be an orderless order and limitless limit.46 After all, the State exists and operates through the law only, and the law inherently constitutes a limitation on the scope of authority of any sovereign entity. Sovereignty has been associated by Austin with the issue of obedience, but it has a deeper connection to and more foundational place in the pure theory. Law’s unity presupposes the self-contained nature of the legal order so that such legal order is capable of independently producing and enforcing legal commands and prescriptions, and determining what happens when such commands and prescriptions are in mutual conflict. In other words, the unity of the legal order cannot be secured without its independence. Independence of the State, and thus its sovereignty, is nothing but the independence of the total legal order through which the State operates. For, the State can exist and operate only through the law. In that sense, sovereignty is merely a feature of a legal order, attesting its independence from any other political or legal order. Unless the legal order is premised on sovereignty, and the sovereign authority has the power of rule-making superior to and exclusive of any other external or internal rule-making authority, i.e. independence from any external authority, its prescriptions cannot form a system of unity. That said, the absolute nature of sovereignty does not inevitably entail the absolutist State; the seventeenth century France was sovereign and had absolute monarchy that was seen to embody that sovereignty; but modern France, with its current legal system, is no less sovereign and independent. In other words, sovereignty does not have to do with the constitutional allocation of authority as between various constitutional organs. The State and its legal order can be sovereign even if the constitution they are based on does not validate the status of the sovereign legislator on the pattern that Hobbes and Austin have envisaged. Viewing sovereignty as a feature of the entire State and not that of one of its organs (monarch, people) is one of the main achievements of modern jurisprudence.47 For under Kelsen’s view, the legislator’s power has to be derived from and determined by the law. The unity of the legal order cannot accommodate the sovereign that is above the law; law has to regulate its own creation. If parliament is the only sovereign with absolute freedom to self-interpret its own legislative authority, then law does not regulate its own creation. Parliament as a sovereign body exists as it has been historically established and evolved; its authority is, however, determined by law and has to be identified through the sources of law.

‘Ein unbeschränkter und unbeschränkbarer Staat ware ordnungslose Ordnung, unbeschränkte Schranke’; Souveränität, 43–4. 47 H Kelsen, Allgemeine Staatslehre (Berlin, 1925) (‘AS’), 102. 46

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In other words, sovereignty is there as an attribute of the State regardless of the nature of its political constitution and of the manner in which that constitution determines the authority of particular organs it establishes. The mainline concept of sovereignty can thus explain that the UK as a sovereign State is not subordinated to any other State. The UK is sovereign, not the parliament. If, arguendo, the UK parliament possesses the unlimited legislative sovereign authority, then such position would inevitably need to be premised on the basic norm of the English legal system – the point where the ultimate law-making authority, behind which there remains no further instance of positive law-making – which provides that this shall be the case. There is, however, no conceptually and analytically feasible way of having a legislative sovereign at the roots of the system unless it is one that produces all law within that system. If, however, the imputation view is followed, the parliament’s legal status must be articulated through a legal rule that must be identified through the ordinary sources of English law. In other words, a rule that shows that parliament is part of the legal order and constitution in the UK, not merely an instrument of factual domination. A constitutional rule that is independent of the parliament’s will must confer the legislative status to parliament and endow its acts with the status of legislation. If parliament’s supremacy derives from the law, then the latter also sets limits and conditions as to its exercise. As Lord Pearce conveniently expressed this idea in Ranasinghe, ‘a legislature has no power to ignore the conditions of law-making that are imposed by the instrument which itself regulates its power to make law. This restriction exists independently of the question whether the legislature is sovereign ... A legislature has not, however, some inherent power derived from the mere fact of its establishment.’48 If such conditions exist in English law they can be found only in common law and validated through judicial cognisance. The rule that requires primacy of statutes over common law is one that secures the unity of legal order in English law. But it is not a statutory rule but a common law rule suggesting that, upon requisite construction, acts of parliament as written law will prevail over common law. This illustrates the unity of English law in action. And that eventually leads to the thesis of dual supremacy shared sovereignty between parliament and common law courts.

Ranasinghe [1965] AC 175, at 197ff.

48

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UNWRITTEN CONSTITUTION OF THE UK

Kelsen explains that the historically first constitution can be laid down by an assembly, or arise by way of custom.49 The ‘historically first’ English constitution is also the current English constitution for a very simple reason that, over the periods of history, such constitution has been one. The most plausible event as to the establishment of such historically first constitution is the Norman Conquest in 1066. This has led to the establishment of royal authority, uniform system of law and court system throughout the realm, essentially entailing the formation of a new State. In the period following the Norman Conquest the significance of constitutional law was not great as ‘all as yet depended on the person of the king’. However, the ‘chief characteristic of our constitution – the supremacy of the law’ was already emerging.50 Coke regarded common law as the source of the King’s powers as well as of fundamental structure of the government and rights and duties of subjects.51 Coke’s approach that all law-making activities can be performed insofar as they have the basis in the common law visualises, in the context of English law, Kelsen’s thesis that the law regulates its own creation. As Sir Frederick Pollock has explained: ‘Neither has there been at any time any wholesale revolution in our judicial methods. The history of our courts is continuous for more than seven centuries.’ Furthermore, ‘[t]he Common Law has not known any such interruptions. Political revolutions have fulfilled rather than destroyed its work; no tyrant or pretender has dared openly to lay hands on it.’52 The jurisdiction of common law courts has not been established by the parliament. The unwritten common law constitution determines the authority of principal law-making organs within the UK legal order. Primary legislation adopted by parliament regulating the organisation and activity of higher courts could as well be seen as parliament’s implementation of the requirements arising under the common law constitution. Parliament merely manages that jurisdiction, as opposed to creating, abolishing or re-creating it. The 1873 Supreme Court of Judicature Act transferred to the High Court of Justice the appellate jurisdiction that was previously vested in a number of other courts, without altering the nature of that jurisdiction and of related

H Kelsen, The Function of a Constitution, in R Tur and W Twinning (eds), Essays on Kelsen (1986) (‘Constitution’), 114–15. 50 Holdsworth, vol. 2, 195–6. 51 GH Sabine, A History of Political Theory (3rd edn, 1949), 452. 52 F Pollock, Expansion of Common Law (1904), 27. 49

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judicial powers. To illustrate, section 16 of the 1873 Act provides that ‘[t]he High Court of Justice shall be a Superior jurisdiction Court of Record, and, subject as in this Act mentioned, there shall be transferred to and vested in the said High Court of Justice the jurisdiction which, at the commencement of this Act, was vested in, or capable of being exercised by, all or any of the Courts following’, and goes on to list the courts whose jurisdiction is being transferred. The section goes on to specify that ‘[t]he jurisdiction by this Act transferred to the High Court of Justice shall include (subject to the exceptions hereinafter contained) the jurisdiction which, at the commencement of this Act, was vested in, or capable of being exercised by, all or any one or more of the Judges of the said Courts, respectively, sitting in court or Chambers, or elsewhere, when acting as Judges or a Judge, in pursuance of any statute, law, or custom’. Similarly, the 1981 Senior Courts Act, section 15(2), specifies that: there shall be exercisable by the Court of Appeal (a) all such jurisdiction (whether civil or criminal) as is conferred on it by this or any other Act; and (b) all such other jurisdiction (whether civil or criminal) as was exercisable by it immediately before the commencement of this Act.

Section 19(2) of the same Act provides that: there shall be exercisable by the High Court (a) all such jurisdiction (whether civil or criminal) as is conferred on it by this or any other Act; and (b) all such other jurisdiction (whether civil or criminal) as was exercisable by it immediately before the commencement of this Act (including jurisdiction conferred on a judge of the High Court by any statutory provision).

These provisions divulge no legislative intention to affect the essence of common law courts’ jurisdiction. As specified in cases of Anisminic and Cart, the parliament cannot effectively remove judicial review powers from courts. The integrity of judicial review is required by the unwritten common law constitution. Lord Scarman has thus articulated the independent role of courts in operating the legal system in the UK: Though statutes now abound and the statute law is increasing in importance, the legal system is not codified – the background of every statute is the common law – the artifice of the lawyers who, through the medium of the courts, make the rules. The system would not have survived until now, had it not possessed great strengths.

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As for the independence of courts, it is: created and cherished by the judges, owing nothing in origin to Parliament, claiming to be customary law, it has an inbuilt resistance to the power of others, whether they be barons or trade unions, Kings or government departments, or even Parliament herself. Its very existence is, therefore, a bulwark against oppression and tyranny, no matter who be the potential oppressor or tyrant.53

This means that the utilitarianism-driven perception of legislative supremacy is not a mirror-image of the constitution as part of positive law. As emphasised, ‘Bentham’s political philosophy was in origin authoritarian, a product of the century of enlightened despotism; and when it later took sides with democracy it could not root out its parentage. Its conception of the nature and exercise of political power sprang from Hobbes … Bentham’s problem was to make Leviathan the slave of the demos, but the nature of Leviathan remained unchanged.’54 Furthermore, ‘Bentham would not accept that the principle of utility was only one among many principles upon which the rules of a legal system were based. The pursuit of happiness, which mean subsistence, abundance, equality and security, predominated in his plans over the pursuit of justice and prevention of cruelty.’55 The constitutional significance of common law has historically been reinforced by its unrivalled devotion to safeguarding personal freedom and liberty, which Blackstone considered to be ‘deeply implanted in our constitution’. The perception of the omnipotence of parliament at the centre of the legal system, that could wipe it all out at whim, led contemporary thinkers such as Thomas Paine to observe that England had ‘merely a form of government without a constitution’, given that parliamentary omnipotence was premised on parliament controlling the community, not the other way around.56 By contrast, the common law developed by courts has historically been the body of rules aimed at safeguarding individual freedom from State encroachments.57

L Scarman, English Law – New Dimension (Hamlyn Lectures, 1974), 6. E Stokes, The English Utilitarians and India (1959), 72l. 55 J Hosteller, The Politics of Criminal Law – Reform in the Nineteenth Century (1992), 31. 56 Cf. for discussion and detail, D Lieberman, The Mixed Constitution and the Common Law, in M Goldie and R Wokler (eds), The Cambridge History of Eighteenth-century Political Thought (2006), 317, at 322, 342. 57 AL Rowse, The England of Elizabeth (1951), 380; A Goodhart, English Law and Moral Law (Hamlyn Lectures, 1953), 7–8; although Dicey, Law and Public Opinion, 146, 175, suggests that utilitarians have initially been sympathetic to the ideas of individual freedom when they developed their reformist outlook. 53 54

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Tamanha’s thesis that ‘personal liberty constitutes the minimum degree of autonomy individuals retain even after they consent to live under the law’58 certainly has a certain natural law outlook, because the positivist method cannot take cognition of rights that are not stipulated under positive law. However, the operation of the common law courts with the doctrines of fundamental rights and common law constitution indeed offers a more moderate version of this thesis, namely one indicating that common law courts use their techniques of law-making and interpretation to protect individual and human rights even in the face of utilitarianism-driven legislation by the ‘sovereign’ parliament. The discontents of UK’s unwritten constitution as to the allocation of the ultimate, or primary, law-making tasks to State organs may be summarised thus: parliament can adopt laws on any subject-matter; its legislation prevails over the common law to the extent to which the two sources of law are in contradiction; courts create and modify common law rules; they determine the meaning of statutes through interpretation; and they have a final word on what the law is. Courts therefore have a significant degree of law-making authority. Conversely, parliament knows it is not the lone law-maker in the English legal system; thus both the legislature and judiciary are aware of factors which secure the unity of a legal system and thereby allow both judicial and legislative law-making to perform their constitutional function. The continuing acceptance of legislative primacy by courts evidences in practice the pattern through which the operation of the basic norm of the UK legal system secures the unity of that legal system.

4.6

COURTS AS LAW-MAKERS

The concept of judicial law-making has from the older times onwards manifested the idea of the independence of the legal system from the will of the political superior. As Sir William Holdsworth has explained: the dominant view of mediaeval statesmen and thinkers that the law should reign supreme; and lead the judges, in ordinary cases, to regard the exposition of the law as emanating from the court rather than as emanating from the king … the fact that royal judges were beginning to create law, at a time when it was natural to think of law as a rule declared by the court, prevented them from regarding it as something which depended merely on the king.59

In the first place, Kelsen’s take on judicial law-making might be seen as just as inimical to civil (continental) law tradition. His approach concedes to judges

BZ Tamanha, On the Rule of Law – History, Politics, Theory (2004), 35. Holdsworth, vol. 2, 197.

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far greater discretion than the traditional civil law thinking would be content with. The judge is seen always to be performing elements of the legislative task. Statutes are only ‘semi-manufactured’ products to be finished through the judicial action and execution.60 Kelsen exposes the prejudice characteristic to continental jurisprudence that erroneously identifies legal rules with general substantive rules.61 Kelsen does not neglect the common law, as he acknowledges that judicial decisions can serve as precedents, creating law that binds beyond the purposes of the relevant case. In such cases courts can act as legislators in the sense that they do not apply pre-existing rules but create new general norms. ‘It is the binding force of the general norm thus obtained which is the essence of a so-called precedent.’62 Judge can act as legislator.63 The process of judicial law-making derives from pre-existing law authorising courts to go beyond existing law and change it if they consider it unsatisfactory.64 Precedent is created by courts when they decide in the absence of a general norm applicable to the case. Courts then appear as legislators in the same sense as parliaments. Legislation by precedent creates general norms binding in subsequent cases. Thus, ‘[t]he general norm may be formulated by the court itself which created the precedent. Or it may be left to every court bound by the precedent to derive the general norm from it, whenever a pertinent case arises.’65 From precedent Kelsen distinguishes ‘the creation of general norms through permanent practice of the courts, i.e. through custom’.66 However judge-made law can be seen as separate from custom that gains its recognition from societal practice. As Dicey observes, judge-made law can represent customs prevalent in society, and so at times legislation does too, but its authority derives from the power of courts, not from that practice as such.67 Norms created by courts stand at the same constitutional level as legislative (statutory) provisions.68 In English law there is no expressly stipulated written rule of positive law entitling courts to make law. Instead, owing to the length of time for which English courts have been engaged in this task, it is difficult to think of a more efficaciously exercised law-making power anchored directly to an unwritten GT, 134, 145–6. GT, 135. 62 GT, 149. 63 GT, 145. 64 GT, 151. 65 GT, 149–50, 272. 66 GT, 150; HLR, 55 (expressly identifying custom as common law norms). 67 Dicey, Law and Public Opinion, 490–1; but Salmond defined common law as ‘the unenacted law that is produced by custom or precedent’; J Salmond, Jurisprudence (6th edn, 1920), 32. 68 GT, 272. 60 61

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constitution and basic norm of the English legal system. The ‘higher norm’ determining the creation of ‘lower norms’ through judicial law-making is part of the unwritten constitution. The pure theory’s prioritisation of legal positivism is responsible for Kelsen’s thesis that law-making takes place across all three branches of government – legislative, executive and judiciary – and at all levels of their hierarchy. As positive law is the sole regulator of human conduct and the sole mechanism through which limitations can be imposed on the exercise of human freedom. In that sense, law-making, or regulation of human conduct takes place through laws adopted by a parliament, ordinances or regulations enacted by the executive or local government, or court decisions. Before each of those acts of law-making are undertaken, it cannot be said that positive law, conceived as a unity, indeed restricts human freedom to the extent that any particular opinion would desire it to be restricted. To illustrate, criminal liability of theft under the 1968 Theft Act is the basis on which (together with other rules of common law) a judge would create a legal position applicable to that particular offender, and thus make law in relation to them. A court may be under a duty to convict a person whose criminal conduct has been duly proved and has no choice on this matter; however, it does have choice on what the sentence should be. Kelsen refers to this process as ‘a process of steadily increasing individualisation and concretisation’.69 Such concretisation can assume various forms, whether the specification of a particular sentence from the range of available ones; or specification of the meaning of a statute from various ones available. In common law systems, judicial law-making concretises the meaning of the law with general effect, as opposed to merely forming a case-specific judgement as to how long a sentence a particular person should serve. As Kelsen specified: ‘Within such a legal system, courts are legislative organs in exactly the same sense as the organ which is called the legislator in the narrower and ordinary sense of the term.’70 It seems that pure theory here rationalises the manner in which the English legal system allocates law-making functions to judicial and legislative branches of authority. None other than Dicey has observed that ‘we must bear in mind that laws are with us created and changed in two different ways that is, either by Act of Parliament, or by judicial legislation arising from the action of the Courts in deciding the particular cases which come before them’. Expansion and reform of the law can take place both through legislation and

GT, 135. GT, 150.

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judicial law-making.71 There is, thus, merely relative, not qualitative difference between the two law-making tasks: judicial law-making is not an occurrence as frequent as parliamentary law-making, but fully fledged law-making it is nonetheless. In a way reminiscent of Coke’s ‘artificial reason’, Dicey explains that ‘every Court in deciding a case must tacitly, or expressly, apply to it some definite principle which is often indeed so clearly known that no special mention need be made of it, but which may be difficult to discover; and when this is so the Court must lay down the rule which guides its decision’.72 Then, it may be that ‘[a] case comes before the House which can only be decided by either affirming or denying the application or validity of some principle. But either affirmation or denial will equally establish a precedent, or in other words, a legally binding rule or law’.73 Maitland has explained that judges in Coke’s time ‘did not expressly claim legislative power, they did not even conceive that this was their claim: they claimed to declare that law – law, common law, natural law (and this was, as we have seen, the old theory) had an existence of its own, independent of the will of man’.74 However, such ‘declaration’ of the common law did not proceed against the background of any source of law other than the judge-made law itself, and often involved an appeal to the principles of reason and natural law. Sir Henry Maine also discusses the merits of ‘declaring’ law, in a passage worth quoting at length: With respect to that great portion of our legal system which is enshrined in cases and recorded in law reports, we habitually employ a double language, and entertain, as it would appear, a double and inconsistent set of ideas. When a group of facts comes before an English Court for adjudication, the whole course of the discussion between the judge and the advocates assumes that no question is, or can be, raised which will call for the application of any principles but old ones, or of any distinctions but such as have long since been allowed. It is taken absolutely for granted that there is somewhere a rule of known law which will cover the facts of the dispute now litigated, and that, if such a rule be not discovered, it is only that the necessary patience, knowledge, or acumen is not forthcoming to detect it. Yet the moment the judgment had been rendered and reported, we slide unconsciously or unavowedly into a new language and a new train of thought. We now admit that the new decision has modified the law. The rules applicable have, to use the very inaccurate expression sometimes employed, become more elastic. In fact they have been changed.75

Dicey, Law and Public Opinion, 164–5. Dicey, Law and Public Opinion, 482. 73 Dicey, Law and Public Opinion, 492. 74 F Maitland, Collected Works, vol. 1 (1911), 301. 75 H Maine, Ancient Law (1908), 28–9. 71 72

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Thus, ‘Judge-made law is real law, though made under the form of, and often described, by judges no less than by jurists, as the mere interpretation of law’. It is ‘as truly law as are laws made by Parliament’.76 The Blackstonian doctrine of the declaratory function of courts, involving not the creation of new law but expounding older ones has for a long time been little more than a ghost.77 In England, the growth of parliament’s legislative authority has been accompanied by the relative reduction of the role of judicial legislation. This is logical, as judicial law-making has been older than legislation as we know it in modern times, and its older broader scope and ambit coexisted with the absence of a modern concept of legislation. Dicey’s observation that judges of his time would not be occupying positions similar to Coke or Lord Mansfield has no doubt been correct; however, his prediction that judge-made law would be exhausted, become gradually narrower and eventually end,78 never came true. Kelsen confronts the perception that legislation becomes law only when courts interpret and apply it, for those who have absolute authority to interpret written laws could be truly denoted as law-givers.79 Kelsen focuses on the contrast between the two extremes. One is the Austinian view that all law is expressly or implicitly created by the legislator. Another is the ‘realist’ view that there is no law until courts have acknowledged and applied it and thus all law is judge-made. The first one does not accord with the independent common law role of English courts. The second one does not properly reflect the duty of judicial obedience of statutes. As Kelsen explains, ‘[i]f one realises the dynamic relationship between judicial decision and legislation, it becomes impossible to explain why the one but not the other should represent law’.80 Indeed, ‘[i]t is difficult to understand why the words of a statute which, according to its meaning, is binding upon the courts should be dead, whereas the words of a judicial decision which, according to its meaning, is binding upon the parties should be living’.81 To proclaim a general premise that words in the statute are dead is to allege that the legislative organ has no genuine law-making competence. It may be all too tempting from a particular ideological point of view to construct and imagine a general theory of judicial law-making premised on the role of judges that holds true across the board in various contexts or in various legal systems. The law-making authority of courts has to be viewed in context Dicey, Law and Opinion in England, 486. W Friedmann, Legal Theory (5th edn, 1964), 438–9. 78 Dicey, Law and Public Opinion, 488. 79 GT, 153–4. 80 GT, 153. 81 GT, 154. 76 77

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with the parliament’s law-making authority, just as the latter’s authority operates in context with the courts’ law-making authority. The so-called jurisprudence of interests (Interessenjurisprudenz) suggests that courts are ‘thinking assistants’ to the legislator as to what the socially reasonable and acceptable legal regulation would be.82 The judge is seen as monitoring the legislator and second-guesses parliament’s policy choices. This approach has been rejected by the House of Lords in Duport Steels.83 The House of Lords has declared that: ‘Though precedent is an indispensable foundation upon which to decide what is the law, there may be times when a departure from precedent is in the interests of justice and the proper development of the law.’84 Kelsen alludes to the possibility of courts creating rules ex post facto through convicting individuals for activities that hitherto had not been unlawful, if the court considers that creation of a new norm is satisfactory, just or equitable.85 Precisely that was done by the House of Lords in R v R when the new offence of marital rape was effectively created.86 Under the 1966 Practice Statement, the House of Lords ‘the House affirmed its power to depart from a previous decision when it appears right to do so, recognising that too rigid adherence to precedent might lead to injustice in a particular case and unduly restrict the proper development of the law’. Unless the departure from the old rule would involve undue practical difficulties, ‘a new and more satisfactory rule is capable of being stated’.87 The House of Lords specified in Miliangos that: if once a clear conclusion is reached as to what the law ought now to be, declaration of it by this House is appropriate. The law on this topic is judge-made: it has been built up over the years from case to case. It is entirely within this House’s duty, in the course of administering justice, to give the law a new direction in a particular case where, on principle and in reason, it appears right to do so. I cannot accept the suggestion that because a rule is long established only legislation can change it – that may be so when the rule is so deeply entrenched that it has infected the whole legal system, or the choice of a new rule involves more far-reaching research than courts can carry out.88

The policy judgement of the law-maker informs both parliamentary and judicial law-making. The principles stated by their Lordships have been meant as

84 85 86 87 88 82 83

Friedmann, 334. See Ch. 3. Conway v Rimmer [1968] AC 910, at 958 (per Lord Morris). GT, 145–6. R v R [1992] 1 AC 599. Miliangos [1976] AC 443, at 467 (per Lord Wilberforce). Miliangos, 469.

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rules of thumb, or as working assumptions, to approach the issue of the judicial law-making. They are, in other words nuances to be considered when tackling this task, not something to doubt the relevance and viability of the task itself.

4.7

STATUTORY INTERPRETATION

Kelsen’s starting point is that there is no inherently correct outcome of the interpretation of legislation, and that the task of interpretation involves the selection of an interpretative outcome from among several possible outcomes. And possible outcomes they are as long as they can be subsumed within the frame of the legislation that is being interpreted. The correctness of the interpretation outcome is not based on the statute itself, but is a product of the decision of the organ that interprets it and owing to that it becomes a rule of positive law.89 ‘Interpretation of a statute need not, then, inevitably lead to a single decision, as the solely correct one, but may lead to several decisions, which rank – insofar as they conform to the norm – as of equal value, even though only one of them in the act of judicial decision becomes positive law. That a judicial decision is founded on statute means in truth nothing more than that it keeps within the frame prescribed by the statute.’90 For, under positive law, ‘[t]here is absolutely no method, which could be characterized as positively legal, by which out of several meanings of a norm only one can be shown to be “correct”’.91 That comes closer to holding that a statute does not necessarily have a fixed meaning, but the ascertainment of that meaning depends on the position courts take towards it. The courts’ interpretative authority thus appears to be a free-standing and independent authority to declare what the content and effect of the legislation are, and is, in essence, a variety of the law-making authority. This is not without implications for the effect that the legislative supremacy of the parliament produces in practice. Kelsen disagrees that interpretation is ‘an operation of the explicative reason, as if the interpreter had to set in action simply his intellect, and never his will, as if by a purely intellectual activity there could be selected from the several possibilities one positively legal, and in that sense correct solution’.92 Interpretation is a means of the concretisation of the law, and is thus indistinguishable from law-making. Kelsen rejects the thesis of jurisprudence of concepts that judicial ‘interpretation, appears simply as the discovery, by a special procedure, of already existent norms. It is the illusion of security

91 92 89 90

PLT, 77. LQR, 523. LQR, 525–6. LQR, 525.

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in law which traditional legal theory, consciously or unconsciously, seeks to maintain.’93 In the context of English law, these words would definitely resonate to those who see the authority of legislative sovereign as absolute and courts merely as enforcers of the utilitarian imperatives prescribed by that sovereign. In common law systems, more than anywhere else, such security on the side of legislative sovereignty reinforced by the utilitarian doctrine would be an illusion. As for the more specific aspect of the interpretative exercise: The task of deriving from a statute the correct decision or the correct administrative act is fundamentally the same as that of endowing the constitution with a content of correct statute. One can as little derive from the constitution the correct statutes by interpretation as by interpretation from the statute derive correct decisions. Certainly there is a distinction between the two cases, but it is a quantitative, not a qualitative distinction in that the legislator is materially less conditioned in his operation than the judge, is relatively more free to make law. But the judge is also a law-maker and exercises that function in comparative freedom.94

Kelsen also illustrates the intimate connection between interpretation and judicial law-making by suggesting that the judicial interpretation of legislation ‘is an elucidation not of positive law, but of other norms which impinge at this point on the process of law-making. Norms of morals, of justice, of social value-judgements – such as ordinarily appear in terms like the “common good,” “state interest,” progress, etc.’, that is considerations which are not matters of positive law. ‘As far as the positive law is concerned the legal act is free, that is, within the free discretion of the appointed agent. One might, indeed, say that thus the “meta-legal” norm (of morals, justice, etc.) stands to the positive law in a relation of delegation. But that is only to say that it has been transformed into a positive law norm.’95 Theorising the interpretation of legislation in a cross-jurisdictional context is a rather challenging task. As for Kelsen himself, a civil law trained lawyer, some sympathy towards tracing the origins of the interpretative authority of courts is obvious when he refers to the provisions of Austrian and Swiss civil codes, each of which: empowers the judge in the case of a gap to act as a legislator, then it makes a delegation of power to the judge, in cases where lie bolds the application of statute to be insupportable, to decide not according to statute, but according to his own discretion. The good legislator is not in a position to renounce what in certain circum-

LQR, 527. LQR, 526. 95 LQR, 527. 93 94

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stances may be a necessary correction of the statute. For he must reckon beforehand with circumstances which he cannot specifically foresee; his general norms can only envisage typical cases. For that very reason he cannot himself clearly define the cases in which he wills the judge, or the legal executive, to take his place.96

It may only be a matter of speculation whether a far-reaching deduction of statutory provisions of such limited import was driven by Kelsen’s own civil law training. On a general plane, his above words appear far more prejudicial with regard to civil law systems and more accurate with regard to the interpretative tradition that exists in common law systems. For one, in common law systems such legislative clauses on interpretation are lacking. And in civil law systems too, those provisions from the Austrian and Swiss civil codes are part of, or exception from, the broader pattern of interpretative authority that a civil law judge shall only expound the content of legislation, not re-interpret it. Hardly anywhere could Kelsen’s broad approach to interpretation be better received than in common law jurisdictions. The utilitarian preference, from early times on, has been that legislation must be ‘efficient and swift, clear and easily intelligible, simple and readily available. … the will of the legislator expressed in simple rational language could be known directly to every man of ordinary intelligence’. The monopoly of the legal professions would be broken and ‘every man would be his own lawyer’.97 Bentham and Austin, motivated by Hobbes’ ideas, ‘founded their criteria of legislation on the analogy of military commands. The cohesion, discipline, and perfect subordination of a military body, which worked almost in silence with the minimum of discussion and few crisp commands, appeared to such minds a thing of intellectual beauty.’98 This perception is very suitable for the idea of legislative omnipotence on the Austinian pattern. The statutory interpretation power of courts is a power deriving directly from the unwritten constitution, not from any statutory conferral (unlike some instances of that in civil law systems as discussed above). The variety of approaches encountered in the English legal system with regard to the interpretation of statutes may be attributed to various judicial policies or be, somewhat uncharitably, described as products of judicial activism. However, the most obvious foundational reason for this is the absence of the description of the concept of interpretation under the positive law of the UK. The 1978 Interpretation Act is restricted to rather specific or technical matters and does not provide much insight into this problem, because it does not elaborate on the substance of interpretation methods as such. In the spirit resembling Coke’s LQR, 530. Stokes, 70–1. 98 Stokes, 309. 96 97

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approach, Sir John Laws observes that ‘[t]he construction of statutes, just as surely as the development of common law principles not touched by legislation, is the product of the common law’s reason matured over time’.99 Interpretation, thus, remains a jurisprudential and analytical matter to be approached by common law courts in the process of the exercise of their task to determine what the law of the land is on the matters involved in the pertinent adjudication. Even if we proceed against the background of the most ordinary and mundane positivist description of the task of interpretation as the ascertainment of the meaning of a legal instrument, the challenges encountered in the judicial process would not go away. For, it is precisely the above-mentioned state of positive law, as discussed above, that enables courts to identify various ways in which the meaning of the statutory enactment could be identified: the meaning as follows from the legislation text; the meaning as has been intended by the legislator; or the meaning which the legislation is constitutionally allowed to have. In other words, the permissible frame set by English law for the interpretation process to operate is rather broad, and is set by common law, not by legislation. As Roscoe Pound has suggested: ‘Let us not forget that so-called interpretation is not merely ascertainment of the legislative intent.’ Here courts end up making new law on the matters covered by legislation and our security that it will be made as law and not as arbitrary rules lies in the judicial and juristic tradition from which the materials of judicial law-making are derived. This traditional element of the legal system is used to supplement, develop and round out its enacted element. The factor of the intention of the legislator is not accorded decisive importance.100 Pound takes an empirical view of this process based on experience; Kelsen has a rather similar view of statutory interpretation, but it is the result of a conceptual look at the nature of this task and the identification of the added value it possesses as part of the whole process of law-making taken globally. Both Kelsen and Pound are generally sceptical about the prioritisation of the legislator’s intention in the process of interpretation. Kelsen criticises the purposive interpretation rule that seems to be required by the above interest-focused approach. The judge has to figure out what interests the legislator has intended to protect. In the end, legislative purpose overlaps with the intention of legislator, which is merely a motive that the legislator had. For a jurist, the key factor is the actually expressed will of the State, as opposed to the motive, opinion or intention of the legislator. It is perfectly possible that the legislator has legislated with the purpose of protecting

Laws, The Common Law Constitution, 6. R Pound, Social Problems and the Courts, 18 American Journal of Sociology (1912), 331, at 335. 99

100

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particular interests. However that is merely a motive of legislation and has no bearing on the meaning and interpretation of the statute.101 This approach is pretty much confirmed in Black-Clawson by Lord Diplock, that parliament’s supremacy is expressed through the words it includes in the statute.102 Then the relative freedom of courts in dealing with open-ended terms, perfectly fits within Kelsen’s subsumption of law-making as the essence of statutory interpretation. As Lord Wilberforce observed in Express Newspapers, words in a statute: must be given their natural meaning and the courts must not approach them with a disposition to cut them down. But it is always open to the courts – indeed their duty – with open-ended expressions such as those involving cause, or effect, or remoteness, or in the context of this very Act, connection with (cf. British Broadcasting Corporation v Hearn [1977] 1 W.L.R. 100), to draw a line beyond which the expression ceases to operate. This is simply the common law in action. It does not involve the judges in cutting down what Parliament has given: it does involve them in interpretation in order to ascertain how far Parliament intended to go.103

This asserts a broad judicial freedom to define the scope of legislative enactments and places legislative purpose at the hands of the judiciary. As a next level of the interpretative process, Dicey has observed that ‘[t]he Courts may, by a process of interpretation, indirectly limit or possibly extend the operation of a statute, but they cannot set a statute aside.104 Furthermore: When a judge applies the words of a statute to a particular case he may well do no more than follow a rule which he in no way creates but, as the history of all our older statutes and of many of our modern statutes shows, judges who interpret statutes and whose interpretations become precedents in reality legislate. To say that all interpretation is legislation is, no doubt, to maintain a paradox. But this paradox comes nearer the truth than the contention that judicial law-making is always in reality interpretation.105

Thus Dicey endorses in effect the same approach to the relationship between law-making and interpretation as Kelsen does. The earlier approach of Sir

Hauptprobleme, 575. Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg A.G. [1975] AC 591. 103 Express Newspapers v McShane and Another [1980] AC 672, at 684. 104 Dicey, Law and Public Opinion, 486: ‘What is to be regretted is that our Courts have felt themselves less at liberty in modern times, at least with regard to the interpretation of statutes, and are apt to pay more attention to the words than to the spirit of an Act of Parliament.’ Ibid., 487. 105 Dicey, Law and Public Opinion, 490. 101 102

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William Blackstone has conceded to courts even greater freedom with regard to the construction of statutes: where some collateral matter arises out of the general words, and happens to be unreasonable; there the judges are in decency to conclude that this consequence was not foreseen by the parliament, and therefore they are at liberty to expound the statute by equity, and only quoad hoc disregard it.106

This approach would give courts even greater freedom in dealing with legislative enactments, involving some degree of judicial supervision of legislative intention. Then, there is the practice of using legislative presumptions under common law, whereby the courts effectively create the meaning of legislative provisions when that meaning would otherwise be contestable; such law-making can involve judicial policy inputs, either expressly or implicitly. This phenomenon vividly operates in criminal law, where statutory law covers the area only partly, and is silent on mens rea, omissions and causation. There also can be cases of poor draftsmanship, which also militates towards courts assuming a greater role in identifying the meaning of statutes. The interpretation of a criminal statute need not differ in technique from the interpretation of other statutes.107 As an illustration of this phenomenon, Lord Steyn observed in B v DPP that: The language [in the 1960 Indecency with Children Act] is general and nothing on the face of section 1(1) indicates one way or the other whether section 1(1) creates an offence of strict liability. In enacting such a provision Parliament does not write on a blank sheet. The sovereignty of Parliament is the paramount principle of our constitution. But Parliament legislates against the background of the principle of legality.108

Lord Nicholls in the same case alluded to Lord Reid’s earlier observation in Sweet v Parsley that: there has for centuries been a presumption that Parliament did not intend to make criminals of persons who were in no way blameworthy in what they did. That means that whenever a section is silent as to mens rea there is a presumption that, in order to give effect to the will of Parliament, we must read in words appropriate to require mens rea.

W. Blackstone, Commentaries on the Laws of England, vol. 1 (1765), Chapter

106

III.

A Simester and R Sullivan, Criminal Law: Theory and Doctrine (2010), 45–7. B (A Child) v DPP [2000] 2 AC 428, at 470 (per Lord Steyn).

107 108

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Lord Nicholls then specified that while in section 1(1) of the 1960 Indecency with Children Act parliament has not expressly negatived the need for mens rea, the question was whether it was: negatived by necessary implication. ‘Necessary implication’ connotes an implication which is compellingly clear. Such an implication may be found in the language used, the nature of the offence, the mischief sought to be prevented and any other circumstances which may assist in determining what intention is properly to be attributed to Parliament when creating the offence.109

To affect common law this way, the relevant implication must be compellingly clear if it relates to the rationale of the crime in question and its absence could make it unworkable. That high threshold was not reached. In Sweet v Parsley, Lord Reid observed that legislative intention to override common law must be expressly specified, not just inferable from context: the fact that other sections of the Act expressly require mens rea, for example because they contain the word ‘knowingly’, is not in itself sufficient to justify a decision that a section which is silent as to mens rea creates an absolute offence. In the absence of a clear indication in the Act that an offence is intended to be an absolute offence, it is necessary to go outside the Act and examine all relevant circumstances in order to establish that this must have been the intention of Parliament. I say ‘must have been’ because it is a universal principle that if a penal provision is reasonably capable of two interpretations, that interpretation which is most favourable to the accused must be adopted.

Words, then, must accordingly be read on the extra-statutory basis not necessarily identical with legislative will.110 And finally, there is the area in which legislative enactments are interpreted compatibly with fundamental human rights. As Lord Hoffmann has observed in Simms: Parliamentary sovereignty means that Parliament can, if it chooses, legislate contrary to fundamental principles of human rights … But the principle of legality means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence

109 B (A Child) v DPP (per Lord Nicholls); see also Sweet v Parsley [1970] AC 132, 156 (per Lord Pearce). ‘Ordinarily, implication in a statute depends either on the words of the statute or, more rarely, on the application of general principles of law which it is assumed that Parliament must have had in mind’. G Williams, The Logic of ‘Exceptions’, 47 CLJ (1988), 261, at 286. 110 Sweet v Parsley, at 148 (per Lord Reid).

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of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual. In this way the courts of the United Kingdom, though acknowledging the sovereignty of Parliament, apply principles of constitutionality little different from those which exist in countries where the power of the legislature is expressly limited by a constitutional document.111

Lord Hoffmann’s affiliation of the interpretation process with the matter of safeguarding the constitutional rules from legislative encroachment sits rather well with the pure theory’s thesis that constitutions ought to be more difficult to amend than ordinary legislative provisions. Here again, the common law comes up with its own way to deal with the matter that could be encountered in civil and common law systems alike.

4.8 ADMINISTRATION One of the principal tasks of jurisprudence is to provide the legal expression for State activities, which prominently include the clarification of the relationship of the executive branch of the government with the legal order.112 Even before Kelsen, German jurisprudence and constitutional theory had been keen on conceptualising the legal essence of the executive, as a branch of the government that has historically developed to deal with the ‘leftover’ from the more clearly defined tasks of the legislative and judicial branches. Administration (Verwaltung) is what does not belong to the sphere of legislation or adjudication. But Laband admits that this is a negative definition emphasising what is not administration.113 Laband speaks here of functions and spheres, not branches of government as institutions. In the modern constitutional reality of various jurisdictions, executive branches of government exercise the rule-making function as well. The requirement of such conceptualisation is even more obvious in a legal system based on an unwritten constitution. The challenge that English law faced in the pre-1688 period related precisely to the Crown’s claims to exercise the rule-making function independently of both the legislature and the common law. The ascertainment of the conditions on which the role of the executive can be subsumed within the legal limits has become more prominent in the workings of the English legal system from the seventeenth century onwards.

Lord Hoffmann in Simms [2000] 2 AC 115. ‘…die staatliche Tätigkeit juristisch zu konstruieren, d.h. die Executive in eine Relation zur Rechtsordnung zu bringen’, Hauptprobleme, 504. 113 P Laband, Staatsrecht des deutschen Reiches, vol. 1 (1895), 642–3. 111 112

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Capitalising on Laband’s approach, Kelsen articulates the distinction between execution (Vollziehung) and administration (Verwaltung). The former is narrower and includes only the activity to enforce legislation, while the latter is broader and includes also the range of activities freely chosen by the executive branch of the government but which are not prohibited by the legislation and do not encroach upon it.114 Both these concepts emphasise the subsumption of the entire executive authority within the law. It is exactly here that Kelsen engages Laband’s ‘mainline’ definition of administration. For, as Laband himself has acknowledged, this was a leftover definition of free governmental activity, and according to Kelsen if we leave it there, the underlying legal reasoning will fall short of capturing its legal essence.115 At the outset Kelsen identifies the purposive aspect of administration. Administration is a purposive activity to dispose of the body of resources with the aim of retaining or multiplying it. In this sense administration is essentially independent of law and is an economic concept. Its essence is not inherently cognisable by the legal method. In this sense administration is a pattern of free activity whose content is not a priori determined by law. Yet it has to be carried out within the bounds of law.116 But then, Kelsen suggests that such purposive meaning of administration has no specific legal meaning, for legal concepts must always be derived from law, not from extra-legal purposes that drive administration in practice. The definition of administration must be connected to a legal rule.117 There can be no such thing as administration extra legem, because all administration amounts to the realisation of a legal rule.118 Thus, the connection to underlying legal rules must be placed at the centre of any concept of administration. For, there is no other place from which valid administrative acts could derive their authority. In the context of English law, this leads to identifying two types of administrative activities the law deals with and constrains: administrative discretion on the basis of statutory conferral, and the royal prerogative that operates on the basis of common law.

4.9

ADMINISTRATIVE DISCRETION

The pure theory’s starting point on this matter is that the State activity is properly free when the one that exercises it also sets its purpose. It is no longer 116 117 118 114 115

Hauptprobleme, 493. Hauptprobleme, 493. Hauptprobleme, 493. Hauptprobleme, 493–4. Hauptprobleme, 502.

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free when someone else sets the purpose. The administering organ never sets the purpose of what it has to administer.119 The executive discretion is a tool of concretising the abstractly expressed will of the State. The limits of discretion are thus determined by the law.120 Discretion is an inevitable element of any legal system because the higher norm cannot always determine the precise content of the lower norm.121 In other words, discretion is inevitable, but it never stands free and operates only within the overall normative hierarchy framework. Kelsen’s explanation of administrative discretion is precisely the free area not bound by the law (subject to the limits of the legislative conferral); hence, it is inherent to such discretion that policy and social judgements, calculations as to public and private interests, will weigh in substantively in the process of the decision-maker arriving at their decision. However, the legal force of that decision derives from the legislative conferral, the legal decision itself, and cannot be impeached merely by disapproving or criticising the policy or social reasons that the decision-maker has used to make that decision. Utilitarians have initially regarded discretion as unnecessary because they thought that laws should be very clear and need no interpretation; however, eventually they accepted the need for it. From the point of view of legal science, however, any discretion is there not to serve any particular policy purposes of the State but to serve as the tool of concretisation of the legal norm which endows the relevant organ with that discretion. For otherwise, if the law conferring discretion to the executive has been adopted in the public interest, and that discretion serves the same purpose, then the administrator’s will could have the same effect with regard to individual rights as the conferring statute itself. This way, the administrator could either exceed the boundaries of conferral, or itself determine what the required public good is and thus undermine the purpose of the conferring legislation. Either way, this is yet another manifestation of the thesis dealt with in the previous chapter, that the legal system is not a mirror-image of any pattern of public good or utility, but their regulator. Kelsen further explains the distinction between the activity of individuals who, beyond the ambit of restrictive legal prescriptions, are left alone in deciding how to develop and prosper, and administrative activities whose basis is always derived from law. The law is completely unconcerned with that above-described individual activity, while any act of State administration affirmatively derives its basis from the law. Unlike individuals, the State can do nothing which is not done through law and stands in no relation to the legal

Hauptprobleme, 499. Hauptprobleme, 506. 121 AS, 243. 119 120

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order. Man is a product of nature and can will whatever he wants, while State is a product of law and can will only what the law allows it to will. The State cannot will anything that is legally indifferent, for any will expressed by the State touches on the limits of the legal order.122 Even though there may be some degree of freedom in administrative will, administration cannot be free the same way as individuals are free in taking care of their lives. For, after all, administration is not based on the same inherent justification: it is there to serve. The role of administration as ‘free’ activity relates to the broader issue of whether the administering State could be understood independently of the law.123 Discretion is never completely free, because only through the relevant legal norm that enables it could it be seen as a legal act and the organs adopting it as State organs. All discretion is free because it is conferred by a legal norm, and limited because that legal norm determines the conditions of its exercise.124 Wade and Forsyth essentially replicate Kelsen’s approach by suggesting that, in English law, the powers of public authorities are essentially different from those of private persons which can dispose of their rights and property at will, for whatever motive. They have unfettered discretion. Public authorities, however, may do things only if they act reasonably and in good faith and upon lawful and relevant grounds of public interest.125 If, as the pure theory suggests, the purpose of legal rules is their legal validity, then the purpose of administrative discretion must logically be to operate within the framework of the rule that confers it. If administrative freedom derives from legal rules only, then any ground of review is premised on the violation by authorities of some pre-existing legal requirements from which discretion is derived or which serve as limits on discretion. Review grounds must be limited to the terms of the legislative conferral; or in the case of prerogative to its common law limits. The limits of discretion should be inferred from the content of positive laws through the use of all permissible means of interpretation. The only limits on discretion can follow from positive law, subject to which discretion can embody the use of political or moral judgement. There can be no natural law limits on discretion. As long as complying with positive law limits, the bearer of discretion is free in exercising it. The basis of discretion in positive law is the principal point at which legal method connects with discretion.126 Thus,

124 125 126 122 123

Hauptprobleme, 494, 496–8. AS, 235. AS, 244. HRW Wade and C Forsyth, Administrative Law (2014), 296. Hauptprobleme, 508–9.

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the decision-makers’ freedom with the substance of the decision is a matter separate from the very basis of their authority that sets limits to its exercise. The case of Wednesbury dealt with the legislative conferral of administrative discretion, where: The power to impose conditions [were] expressed in quite general terms [of the 1932 Act] ... the conditions which, under the exercise of that executive act, may be imposed are in terms, so far as language goes, put within the discretion of the local authority without limitation ... a condition of the kind imposed in this case is [thus] perfectly lawful.127

It can thus be said that the Wednesbury approach gives effect to the legislative intention, and articulates the essence of discretion and delegation the way Kelsen has envisaged it, suggesting that ‘the executive norm constitutes a frame for which there are several possible contents, whereby every act appears as legal which keeps within the frame’.128 Wednesbury is profoundly Kelsenian not just legally, but also from political and ideological perspectives, in that it prioritises the freedom of the administrative decision-maker to weigh up conflicting interests independently and arrive at the legally binding result. Courts will only address themselves to whether the parameters of the delegated authority have been observed. As was the case with Wednesbury, the substance of the result as such will not go to the validity of the decision. Just as parliament’s laws cannot be impugned on moral or interest-based grounds, decisions adopted pursuant to the parliamentary conferral of authority should be exempted from such review as well (to what extent that is impeccably the case in English law is a different matter). Judicial review of the discretion is closely linked to the parameters of the delegated conferral of administrative powers. A subsequent case has suggested that: The very concept of administrative discretion involves a right to choose between more than one possible course of action upon which there is room for reasonable people to hold differing opinions as to which is to be preferred.129

The House of Lords decision in Tower Hamlet substantiates the very same Kelsenian approach in relation to various types of discretion: before deciding whether a discretion has been exercised for good or bad reasons, the court must first construe the enactment by which the discretion is conferred. Some

Wednesbury [1948] 1 KB 223, at 227–8. LQR, 525. 129 Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014, 1064. 127 128

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statutory discretions may be so wide that they can, for practical purposes, only be challenged if shown to have been exercised irrationally or in bad faith. But if the purpose which the discretion is intended to serve is clear, the discretion can only be validly exercised for reasons relevant to the achievement of that purpose.130

These matters have acutely arisen in English law; authority delegated to the executive by the parliament to be viewed just as absolute as parliament’s legislative authority is viewed. The Brind case involved a statutory conferral of discretion to the executive branch of the government that could have been used as a substantial or severe curtailment of the right to the freedom of expression. Section 29(3) of the Broadcasting Act 1981 provided that ‘the Secretary of State may at any time by notice in writing require the Authority to refrain from broadcasting any matter or classes of matter specified in the notice; and it shall be the duty of the Authority to comply with the notice’. The House of Lords took the view, reflective of utilitarianism, that: any restriction of the right to freedom of expression requires to be justified and that nothing less than an important competing public interest will be sufficient to justify it. The primary judgment as to whether the particular competing public interest justifies the particular restriction imposed falls to be made by the Secretary of State to whom Parliament has entrusted the discretion. But we are entitled to exercise a secondary judgment by asking whether a reasonable Secretary of State, on the material before him, could reasonably make that primary judgment.131

The review is thus confined to the compliance by the decision-maker with the terms of the conferral of discretion. The amount of impact on the affected individuals or entities does not seem to be a primary legal consideration. This reflects the utilitarian prioritisation of interests prioritised by the State, legislator and decision-maker over competing interests or rights. As was reasoned in Brind: In any civilised and law-abiding society the defeat of the terrorist is a public interest of the first importance. That some restriction on the freedom of the terrorist and his supporters to propagate his cause may well be justified in support of that public interest is a proposition which I apprehend the applicants hardly dispute … I should add that I do not see how reliance on the doctrine of ‘proportionality’ can here advance the applicants’ case.132

Tower Hamlet [1988] AC 858, at 873 (per Lord Bridge). Brind [1991] AC 696, 749 (per Lord Bridge). 132 Brind, 749. 130 131

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Other cases have adopted a more dynamic approach to determining what is the acceptable way of decision-making. The Bromley case dealt with the situation where a particular transport authority, empowered by the statute to act out of economic necessity, yet which chooses to reduce transport tariffs out of policy preferences, exceeds its powers and breaks the law.133 Lord Brandon suggested that, ‘[i]n my view the decision of the G.L.C. to persist in the implementation of their election policy on public transport, after it had become apparent that the originally contemplated cost to the ratepayers of the London boroughs would be nearly doubled, was not a decision which the council, directing themselves properly in law, could reasonably have made’.134 The approach of courts becomes even more proactive and dynamic in the case of Pergau Dam, dealing with the government’s use of resources allocated to development policies and purposes. The validity of the administrative purpose was verified against the definition of that purpose under the relevant statute. The court specified that, ‘[w]hatever the Secretary of State’s intention or purpose may have been, it is, as it seems to me, a matter for the courts and not for the Secretary of State to determine whether, on the evidence before the court, the particular conduct was, or was not, within the statutory purpose’.135 An enhanced degree of judicial control of discretion is possible to be exercised, either through or in addition to the identification of the meaning of statutory words dealing with the use of those resources: ‘As to the absence of the word “sound” from section 1(1), it seems to me that, if Parliament had intended to confer a power to disburse money for unsound developmental purposes, it could have been expected to say so expressly.’136 More broadly, as the House of Lords specified in Padfield: Parliament must have conferred the discretion with the intention that it should be used to promote the policy and objects of the Act; the policy and objects of the Act must be determined by construing the Act as a whole and construction is always a matter of law for the court … if the Minister, by reason of his having misconstrued the Act or for any other reason, so uses his discretion as to thwart or run counter to the policy and objects of the Act, then our law would be very defective if persons aggrieved were not entitled to the protection of the court.137

The various above options developed by courts under common law suggest that the review of discretion is closely connected with the ascertainment of the meaning of statutory conferral clauses, which is the courts’ task under 135 136 137 133 134

Bromley [1983] 1 AC 763, at 846 (per Lord Scarman). Ibid., 853 (per Lord Brandon). Pergau Dam [1995] WLR 386, at 401. Pergau Dam, 402. Padfield [1968] AC 997, at 1030 (per Lord Reid).

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common law. Precisely this phenomenon confirms the pure theory’s above point that the administration never sets the purpose of tasks that it has to administer. The hierarchy between a statute and administrative decisions is safeguarded by the courts. The introduction of the illegality test in GCHQ by Lord Diplock was a further illustration that the purpose of judicial review in administrative law is to protect the hierarchical arrangement of normativity. The illegality test means that ‘the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it. Whether he has or not is par excellence a justiciable question to be decided, in the event of dispute, by those persons, the judges, by whom the judicial power of the state is exercisable.’138 The procedural impropriety is a different heading altogether, serving a different aim. As Lord Roskill emphasised, the purpose is not to identify whether the policy in question is fair but whether the manner in which it was taken is fair.139 In terms of review grounds, English law has also come up with criteria that do not inherently relate to the meaning of the legislative conferral, such as fairness and natural justice. This has been possible, as Lord Scarman has explained, because ‘“Wednesbury principles” is a convenient legal “shorthand” used by lawyers to refer to the classical review by Lord Greene M.R. in the Wednesbury case of the circumstances in which the courts will intervene to quash as being illegal the exercise of an administrative discretion’.140 Lord Scarman’s point was that standards of judicial interference with administrative action are not set in stone but depend on their judicial development. There is a difference between grounds of review related to the decision-maker’s compliance with the conditions and requirements attendant to the statutory conferral of the discretion; and other common law grounds or review. However, both Wednesbury and Brind provide us with a singular view of grounds of review and, on that position, judicial review becomes effectively associated with the compliance of the executive with the terms of the statutory conferral of the discretion, and ends up being free from other limitations.141 The similar use of common law powers earlier enabled the House of Lords in Anisminic to interpret section 4(4) of the 1950 Foreign Compensation Commission Act, requiring that ‘[t]he determination by the commission of any application made to them under this Act shall not be called in question in any court of law’ as covering some ‘determinations’ but not others. The

140 141 138 139

GCHQ [1985] AC 374, at 410. GCHQ, 414–15. Nottinghamshire [1946] AC 240, at 249 (per Lord Scarman). See further Ch. 6.

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latter ones were determinations which were judicially deemed to be tainted with nullity, even though parliament had expressly prescribed that they should stand.142 Presumably that ‘very high’ and ‘transcendent’ jurisdiction, whereby common law courts can supervise the exercise by statutory tribunals of their own jurisdiction, and which Laws LJ later on articulated in Cart,143 enables courts to set common law limits to a statutory organ’s powers independently of their statutorily defined jurisdiction. In such cases parliament may not always be able to control the meaning of its own enactments. While handling this allegedly specific and technical issue of statutory tribunals’ jurisdiction, Laws LJ has placed the matter in the context of the ultimate derivation of judicial authority from the unwritten constitution, in the manner with which the pure theory approach to constitution and basic norm would be fully content. In Witham Laws LJ confronted the argument that Wednesbury applied, which he rejected because it did not accord with: an unspoken premise … that the common law affords no special status whatever to the citizen’s right of access to justice. [The counsel] says that the statute’s words are unambiguous, are amply wide enough to allow what has been done, and that there is no available Wednesbury complaint. That submission would be good in a context which does not touch fundamental constitutional rights. But I do not think that it can run here. Access to the courts is a constitutional right; it can only be denied by the government if it persuades Parliament to pass legislation which specifically – in effect by express provision – permits the executive to turn people away from the court door. That has not been done in this case.144

This shows that this particular aspect of separation of powers is entirely for courts to develop. Constitutional common law standards may well justify standards of review that do not otherwise apply in administrative law. In effect, the judiciary makes and breaks the rules on executive discretion. As Bennion explained: ‘The mere fact that a statutory power to exercise judgment or discretion in its terms unfettered does not prevent the court from laying down guidelines as to its exercise.’145 These guidelines could derive from no other place than an unwritten constitution that sets limits both to the parliament’s and the executive’s authority. There indeed may be cases in which the ‘legislative intention’ approach may appear as squaring the circle. Furthermore, whether this amounts to the use of the ultra vires model or the modified ultra vires model may be a matter of opinion and appreciation; however, the real issue is the extent to which the constitution allows such mod 144 145 142 143

Anisminic v Foreign Compensation Commission [1969] 2 AC 147. Cart [2010] WLR 1012, paras 44–51. Witham [1998] QB 575, 586. FAR Bennion, Statutory Interpretation (3rd edn, 1997), 84.

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ification of a judicial review model that is widely seen to reflect the perception of the unlimited sovereignty of the parliament and the duty of judicial obedience of statutes that corresponds to the extent of that unlimited sovereignty. In other words, the application of the pure theory leads to the result that the doctrine of legislative supremacy is exposed to the vagaries of the legal system in the same way as any other principle of normative hierarchy. Parliament’s enactments are considered by the legal system merely as framework rules, while courts are constitutionally authorised to give to those statutory rules a more concrete meaning. Doing so, courts perform the fully fledged law-making function. The above-discussed outcomes that follow with regard to interpretation of acts of parliament by English courts go to the heart of the constitutional allocation of public authority to various branches of the government. Of particular interest from the perspective of the pure theory are the aspects of the relationship between the executive and the courts in the area of judicial review, extra-statutory, or common law, grounds of the review of administrative acts and how all that fits within the pure theory’s model of normative hierarchy and rule-making through the chain of delegation. If a decision-maker ought to be allowed to make free decisions within the scope of delegated powers, yet courts use extra-statutory or common law grounds in the process of review, could English law be said to constitute a unity? Do the two branches of the government purport to subject individuals to diverging regulations? While it is true that administrative discretion is meant to concretise the legislative will, and is thus as broad or as narrow as the legislator has determined it should be, it is also the principle of English law that the meaning and effect of statutes is to be determined by courts. Thus, English common law subjects the effect of administrative discretion to these conditions, and it is on this position that the unity of English law can be identified. The unity of the law relates to the overall constitutional balance between various branches of authority, not to the identification of the will and authority of any single organ on its own. A genuine measure of strain and overstretch may be involved in the assertion that enabling courts to perform judicial review on extra-statutory grounds is part of the parliament’s legislative intention. If courts create principles or headings of judicial review that enable trimming down executive activities to the extent greater than parliament has willed it, then they essentially subject the authority of parliament to the relevant common law limitations. The remit and scope of those common law limitations are to be ascertained by courts themselves. It is assumed that when parliament confers a power to the executive it intends that such power can be used ‘with due consideration of rights and

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interests adversely affected’.146 This does not reflect the classical notion of the utilitarian discretion. On the other hand, if ‘parliament legislates against a background of judge-made rules of interpretation’,147 then the parliament acts with the awareness of the constitutional context in which the effect sought by its legislation is not guaranteed unless courts approve that legislation that way, which happens on the basis of law, and parliament is thus aware that its powers are not unlimited in relation to, indeed they are subject to conditions stated, or to be stated under, the common law. The co-existence of unlimited parliamentary sovereignty and the wide freedom of English courts in construing statutes, at times in effect opposite to how their drafters and authors would themselves interpret them, was recognised already by Dicey.148 If statutory interpretation were always to keep within the bounds of the statutory text, and thus correspond to the ultra vires model, then judicial review could possibly be seen as premised on the concept of the legislative supremacy of the parliament. After all, it is parliament which, on that position, enjoys sovereignty, not the executive, and courts must merely ensure that the latter keeps within the limit of statutory conferrals issues by the former. But the existence and development of extra-statutory common law grounds of review enable courts to restrain the exercise of executive discretion to the extent greater than the intention of parliament would require it, thus inevitably raising the issues as to the constitutional scope of legislative supremacy. In a way, not even the ultra vires model itself is a product of parliamentary intention. It is merely a judicial deduction on the basis of common law as to the relationship between courts and parliament. A hypothesis that the need to carry out the discretionary authority delegated by the parliament to the executive has Wade and Forsyth, 28. Ibid., 28. 148 ‘This solution may be thought by some critics a merely formal one, or at best only a substitution of the despotism of Parliament for the prerogative of the Crown. But this idea is erroneous. The fact that the most arbitrary powers of the English executive must always be exercised under Act of Parliament places the government, even when armed with the widest authority, under the supervision, so to speak, of the Courts. Powers, however extraordinary, which are conferred or sanctioned by statute, are never really unlimited, for they are confined by the words of the Act itself, and, what is more, by the interpretation put upon the statute by the judges. Parliament is supreme legislator, but from the moment Parliament has uttered its will as lawgiver, that will becomes subject to the interpretation put upon it by the judges of the land, and the judges, who are influenced by the feelings of magistrates no less than by the general spirit of the common law, are disposed to construe statutory exceptions to common law principles in a mode which would not commend itself either to a body of officials or to the Houses of Parliament, if the Houses were called upon to interpret their own enactments.’ Dicey, The Law of the Constitution (8th edn, 1915), 409. 146 147

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been determined by the parliament itself would be absurd and counter-factual. Either as an implication of judicial obedience to statutes or of statutory interpretation methods, the ultra vires model is itself a creation of common law dealing with the relevant constitutional aspects of the relationship between courts and the parliament.

4.10

ROYAL PREROGATIVE

Already medieval law was familiar with the distinction between jurisdictio as activities in the implementation of the law, such as adjudication or tax-collection, and gubernaculum as a more open-ended type of governmental activity with regard to initiation of policies, notably with regard to peace and war.149 The constitutional basis of royal prerogative could be seen to be just as ancient and transcendent as that of legislative and judicial functions. As explained, defence of the realm against external threats has been seen as a discretely royal affair from the ancient times onwards, and so the monarch was to formulate and conduct the policy in that respect. This kind of authority was seen as guidance and leadership, as different from the mere administration or enforcement of the law.150 The fact that in relation to such gubernaculum the monarch would not be bound by the law has overlapped, somewhat conveniently it seems, with the fact that this authority was concerned with the area in which there was no law in the first place, for instance foreign policy.151 Doctrinal assessments regarding the constitutional scope of a royal prerogative have varied. Locke suggested that prerogative is a ‘[p]ower to act according to discretion, for the public good, without the prescription of the Law, and sometimes even against it’.152 Ihering presented the extra-legal view of this matter with impressive openness: the State must not limit its own power of spontaneous self-activity by law any more than is absolutely necessary – rather too little in this direction than too much. It is a wrong belief that the interest of the security of right and of political freedom requires the greatest possible limitation of the government by the law. This is based upon the strange notion that force is an evil which must be combated to the utmost. But in reality it is a good, in which, however, as in every good, it is necessary, in order to make possible its wholesome use, to take the possibility of its abuse into the bargain.153

151 152 153 149 150

M Oakeshott, Lectures in the History of Political Thought (2006), 266–7. Oakeshott, 320. Oakeshott, 320. J Locke, Second Treatise on Government (1980), 83. R von Ihering, Law as a Means to an End (1913), 315.

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Ihering’s reasoning contains a noteworthy mix of utilitarian views with raison d’etat: the attainment of a greater good excuses certain evils. In effect this is to argue against the rule of law. Ihering has also suggested that ‘[i]t is the right of inevitable necessity accompanying the state of necessity which the government thus exercises … At the same time, however, the open violation of the laws is a deplorable proceeding which legislation must spare the government as far as possible. It can be done by bringing the right of inevitable necessity itself under the form of law, as is done more or less in all modern laws and State constitutions.’154 The broader question relates, however, to the relationship between legal order and necessity. Necessity serves as a motivating force for most of the legislative or administrative decisions, as well as emergency legislation or regulations, or prerogative powers. Does necessity have any inherent relevance? What is the weight of necessity in cases where the legal order authorises a State organ to enact a particular decision and where that legal order does not authorise such decisions to be taken? In fact with Ihering’s scheme, in cases where the legislator has not foreseen the government’s role accordingly, does necessity have any inherent role to justify ‘the open violation of laws’? The pure theory’s starting point is that, when it is asserted that the Head of the Executive (or whoever is entitled to act on their behalf) is to act freely as long as not offending against the will of the State expressly proclaimed in legislation, the basis for such power must be identified in a concrete rule, concrete constitution. This is a necessary approach if one undertakes positivist analysis, as opposed to constructing a natural law basis for executive entitlements. In relation to any particular legal system such blanket entitlement can be inferred through logical and historical interpretation.155 Besides administration (Verwaltung), Kelsen singles out the governmental activity of the State (Regierungstätigkeit), which is at times perceived as a separate type of State activity and at times as a legally unbound part of administration. There is a trend of viewing governmental activity as being displayed in a law-free space, encompassing in particular foreign affairs, war powers, appointment of officials and pardoning. In acting in these areas, government officials have relatively free discretion to determine what State interest requires. However, generically the essence of discretion in these areas is hardly distinguishable from that in other areas of administration.156 That holds true in English law too, as is clear from the above-cited passages from GCHQ.

Ihering, 317–18. Hauptprobleme, 501–2. 156 AS, 244–5. 154 155

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The position that prerogative discretion and decisions are reviewable the same way as statutory discretion is hardly different from Kelsen’s presentation of the position under the 1920 Austrian Constitution that ordinances issued directly on the basis of that constitution can be invalid if contradicting the constitution while ordinances issued on the basis of statutes can be invalid if contradicting the statute.157 Thus in the UK the review of prerogative is a form of constitutional review, because rules determining the basis and scope of the royal prerogative are constitutional rules. The pressing issue is not only whether the executive enjoys the royal prerogative to act in the public interest, but also whether the exercise of this power eventually invades the sphere of legislative and judicial prerogatives of other branches of the government. Prerogative can on such vision be an all-pervading power exercisable at the discretion of the executive whenever the executive deems that fit. The identification of the precise legal basis of the royal prerogative thus becomes pressing, in order to ascertain the scope of this authority. King James I admitted before the parliament that he had no legislative powers, but also claimed before the Star Chamber meeting in secret that he was above the law and possessed prerogative powers which were beyond the power of courts to discuss. That prerogative he considered to be of divine origin.158 In the Proclamations case ‘it was resolved, that the King hath no prerogative, but that which the law of the land allows him’.159 Since then, that has been the law. It was by reliance on that, when Lord Denning described the normative essence of the royal prerogative in the following terms: The prerogative is a discretionary power exercisable by the executive government for the public good, in certain spheres of governmental activity for which the law has made no provision, such as the war prerogative (of requisitioning property for the defence of the realm), or the treaty prerogative (of making treaties with foreign powers). The law does not interfere with the proper exercise of the discretion by the executive in those situations: but it can set limits by defining the bounds of the activity: and it can intervene if the discretion is exercised improperly or mistakenly. That is a fundamental principle of our constitution.160

The High Court has observed in Al-Rawi that ‘the common law assigns the duty of decision upon the merits to the elected arm of government’.161 Well,

157 H Kelsen, Judicial Review of Legislation: A Comparative Study of the Austrian and the American Constitution, 4 Journal of Politics (1942), 183 (‘JR’), 184. 158 CJ Friedrich, The Philosophy of Law in Historical Perspective (1958), 81–2. 159 77 ER 1352, (1611) 12 Co Rep 74, 1354. 160 Laker Airway [1976] QB 643, 705 (per Lord Denning). 161 Al-Rawi [2008] QB 289, at 346 (para. 148).

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if common law assigns this power, it controls it as well. Hence the royal prerogative is subsumed within the common law, and on that account the unity of English law is preserved.

4.11

ILLEGAL LAWS AND ‘ALTERNATIVE PROVISIONS’

The application of legal norms throughout the chain of normative hierarchy may require the resolution of conflicts between them. Much as the grounds of judicial review in English law show the consciousness of courts that the integrity of the normative hierarchy chain should be protected, the pure theory makes some allowance for the possibility that its finely constructed chain of normative hierarchy and delegation of authority will not always be impeccably complied with in practice. Kelsen explains that there is no absolute guarantee that the lower norm will always correspond to the higher norm.162 The principle of res judicata overtakes requirements as to hierarchy of norms.163 Res judicata is a tool whereby the legal system admits the possibility that the lower norm which contradicts the higher norm can still be treated as valid and binding, should this outcome follow from the final and binding judicial decision. On the one hand, this position follows from the imperatives of positivist philosophy of law, to the effect that the answer about the contested validity of any norm should come from the legal system, not from any particular opinion about the contested norm. On the other hand, and in this area at least, all legal systems admit that the final word as to what the law is rests with the judiciary. There is indeed little that could be done legally if the UK judiciary were to confirm the validity of the obviously ultra vires administrative regulations, and it is indeed true that in such case the matter about them being ultra vires would be one of the legally irrelevant opinions. Even if the final judicial decision in question was to be a demonstrably wrongly reasoned one, the positive legal order within which it would be adopted would still take cognition of it as a valid and final judicial decision. The legal order in question would not be capable of providing any other answer regarding this contested issue or any other remedy. The principal upshot here is that the unity of the legal system and the positivity of the law are the features not only of individual legal norms, but also of the legal system as a whole (total legal order) and its operation from start to finish. Only after understanding any legal system in its totality is one able to understand its merit and evaluate it. Being an entirely positivist doctrine, the

GT, 155. GT, 155.

162 163

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pure theory thus lays foundations for other theories to conduct their enquiry regarding the merit of any legal system. The pure theory operates with the notions of illegal law, or ‘law against law’, which can be exemplified by: parliament legislating contrary to the constitution; the administration exceeding boundaries when exercising discretion by using statutory powers; courts misreading a statute so that its interpretation is alleged not to correspond to the meaning of the statute or to the legislator’s intention. Kelsen states the pure theory’s priorities in a rather interesting passage: if the phenomenon characterised as ‘norm contrary to the norm’ – the unconstitutional statute, the illegal judicial decision, and so on – really did amount to a logical contradiction between a higher-level norm and a lower-level norm, that would be the end of the unity of the legal system. But there is no such contradiction at all.164

It seems that Kelsen may be using the concept of the unity of the legal system in two different senses: one is the unity in the sense of consistent chain of normative hierarchy that secures the unity of the law-making authority down the line; the other one is the unity in the sense of interpreting all elements of the constitution in the mutually compatible way. To illustrate, the author of an unconstitutional law or illegal regulation breaches the unity of the legal system because he goes beyond the conferred scope within which he can make laws. The unity of the law-making authority is not maintained down the line anymore. However, it is supposed that the constitution sets particular procedures to deal with such illegal law-making exercises and unless the illegal law is struck down through those procedures, it remains valid, and thus the constitutional order retains its unity. This second account may be factually and normatively accurate. However, it is difficult to see how well this thesis can sit with the assumption that there is no contradiction between higher-ranking and lower-ranking norms. It seems, instead, that the second account is really about sacrificing the requirements of normative unity to preserve the systemic unity, in other words sacrificing the requirements under the law to preserve the order. Speaking purely on normative terms, on this second account the constitution becomes devoid of substance and is turned into the self-serving and self-referential arrangement of law-making authorities that has to be preserved and prioritised at the expense of the substantive primacy of the constitution itself. The question that prompts itself is: Do these law-making authorities genuinely function within the framework of the constitution, or do they in effect create another, ‘real’, constitution which is authored not by the constitution-making authority but by the organs set up by the constitution PLT, 72.

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(much as the nominal point could still be made that such ‘real’ constitution is what the authors of the original constitution in fact laid down by eschewing to provide more efficient safeguards for preserving the unity of the normative hierarchy chain and mutual correspondence of higher-level and lower-level norms)? However, the practice of common law systems shows that the dichotomy between the two competing concepts of normative unity by no means amounts to a constitutional inevitability. This could be seen as disapproval of Kelsen’s thesis or, alternatively, a mere illustration of Kelsen’s referential point at the example of common law constitutions under which the law is what the judiciary determines it to be. Kelsen suggests ‘the question whether a lower norm corresponds to a higher norm can be decided only by an organ in a certain procedure’. This position applies both to law-applying organs creating new rules or applying pre-existing ones.165 To illustrate, section 4 of the 1998 Human Rights Act has entrusted courts to issue a declaration of incompatibility, should the parliament adopt a law that contradicts the 1998 Act. This is not a fully fledged form of judicial review, but it gives the possibility to the government to make amendments to the legislation and make it compatible with the 1998 Act. Conflict can also occur between the two judicial decisions. As was explained by the House of Lords, ‘[i]f a subordinate court fails to abide loyally by the judgment of its superior court, the decision of the subordinate court is likely to be appealed to the superior court, which is in turn likely to vindicate its previous decision’.166 This phenomenon can be displayed as between the House of Lords and Court of Appeal, and the latter and the High Court. The upper court would thus be asserting its authority over the lower one.167 In Young v Bristol Aeroplane,168 the Court of Appeal has examined the matter of conflicting judicial decisions, and has, among others, singled out the cases which conflict with each other and those that were delivered per incuriam. As for the former case, it was ‘beyond question that the previous decision is open to examination’, and ‘the court is unquestionably entitled to choose between the two conflicting decisions’.169 More specifically: Where the court has construed a statute or a rule having the force of a statute its decision stands on the same footing as any other decision on a question of law, but where

GT, 154. Miliangos, 479 (per Lord Simon of Glaisdale). 167 SH Bailey, M Gunn, N Taylor and J Ching, The Modern English Legal System (2007), 483ff. 168 Young v Bristol Aeroplane [1944] KB 718. 169 Ibid., 725, 729–30. 165 166

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the court is satisfied that an earlier decision was given in ignorance of the terms of a statute or a rule having the force of a statute the position is very different.170

Overall, the centrality of courts in dealing with various examples of ‘illegal laws’ the pure theory focuses on, captures well the approach of English law to law being what courts say it is, an aspect of the unity of the English legal system. However, this approach cuts both ways in English law. A judicial interpretation of a statute, or construction of the scope of administrative discretion, may seem incompatible with the legislator’s intention, but it does become part of the law when affirmed by the judiciary. A thesis of its incompatibility with the legislator’s intention becomes a matter of a mere opinion. The courts’ role is ensuring the unity of the law does not merely revolve around the maintenance of the integrity of the normative hierarchy chain, but also operates through the law-making supremacy shared between the parliament and courts. This pattern illustrates the pure theory’s priority to rationalise the law’s normative unity as well as its systemic unity. The mediator between the two is the principle that the law is what courts will say it is.

4.12

ISSUES OF VALIDITY AND NULLITY

Kelsen suggests that a ‘declaration’ of nullity of a legislative act by courts has a constitutive character,171 and that ‘[t]he case of absolute nullity lies beyond the law’.172 On the other hand, ‘[t]he annulment may be retroactive in effect; and the legal order may authorize every individual to establish the nullity of the act, that is, to annul the act with retroactive force’.173 Kelsen opposes absolute nullity, viewing it as ‘a status where everybody is authorised to declare every norm, that is to say, everything which presents itself as a norm, as null, [which] is almost a status of anarchy’.174 But Kelsen does, in principle, accept the possibility of annulment with retroactive force.175 By suggesting that ‘only the legal order itself could answer this question’,176 Kelsen essentially subscribes to the view that every legal system will itself determine what kind of invalidity will ensue on what grounds and conditions, what its temporal dimension is, and who has the standing to raise the issue. Nullity ab initio as declared by courts is not ruled out. What is ruled out or, at

172 173 174 175 176 170 171

Ibid., 729. GT, 160. GT, 161. JR, 190. GT, 160. GT, 161. GT, 161.

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least resisted, by the pure theory is the non-compliance with laws and decisions unless and until those have been reversed on the legal system’s own terms. Kelsen suggests that, by refusing to apply a law, a judicial organ invalidates it not generally but for the purposes of the individual case only. However, a constitution may empower a highest legal organ to abolish unconstitutional law on a general plane. However, it is not ruled out that a decision of a highest court declaring a law unconstitutional may have the force of precedent and on that basis would not be applied by State organs, above all by courts.177 Kelsen’s conclusions are not categorical or blanket, but merely referential, illustrating options that could materialise at the example of various constitutions. At the example of US law, Kelsen suggests that constitutional review may lead to the restoration of the effect of a previously valid common law rule from which the unconstitutional statute has derogated. But this ‘is not possible without an express provision of the constitution which attributes this effect to judgments of nullification by the Court’. Overall this is a matter to be determined by constitutional provisions, of which the Austrian example is provided.178 In English law these matters are governed entirely by common law; judges are authorised by the legal order to decide on these aspects of nullity. As a starting point, and pretty much in a Kelsenian spirit, Lord Radcliffe has suggested in East Elloe that ‘[a]n order, even if not made in good faith, is still an act capable of legal consequences. It bears no brand of invalidity upon its forehead. Unless the necessary proceedings are taken at law to establish the cause of invalidity and to get it quashed or otherwise upset, it will remain as effective for its ostensible purpose as the most impeccable of orders’.179 The type of nullity involved in the case may depend on the grounds of review of the impugned decision. With the ultra vires model the nullity protects the parliamentary supremacy in the area of legislation by keeping the executive within the bounds of what the parliament has stipulated. The matters may be different with regard to decisions impugned on the basis of natural justice or fairness. Furthermore, what initially may appear as a principled issue of validity may be subsumed, in the course of judicial reasoning, within the disposition of more specific issues such as time bar, acquiescence, standing, or effects of invalidity ratione personae. However, behind these ostensibly technical matters the broader policy and analytical elements are hidden as to the extent to which courts will defer to or challenge the executive’s decisions.

GT, 267–8. JR, 198–9. 179 East Elloe [1956] AC 736, at 769–70. 177 178

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Ridge v Baldwin has exposed the connection between the type of invalidity of an act found in the case and the ground on which that act is attacked before the court. Lord Reid has stated that: Time and again in the cases I have cited it has been stated that a decision given without regard to the principles of natural justice is void ... I see no reason to doubt these authorities. The body with the power to decide cannot lawfully proceed to make a decision until it has afforded to the person affected a proper opportunity to state his case.180

Lord Devlin suggested that it did not ‘follow that a defect of natural justice sufficiently grave to be a ground for quashing the resulting decision inevitably leads, as in the present case, to a declaration that the decision is void ab initio’. The reason consisted in the distinction ‘between a wrong exercise of a jurisdiction which a judge has and a usurpation of a jurisdiction which he has not. If there is no jurisdiction, the decision is a nullity, whether the court quashes or not. If there is jurisdiction but there has been a miscarriage of natural justice, the decision stands good until quashed. The occurrence of a miscarriage does not require the court to quash if it is satisfied that justice can be done in some other way.’181 Lord Hodson similarly emphasised that ‘where there is a want of jurisdiction as opposed to a failure to follow a procedural requirement the result is a nullity’.182 We can see here a contrast between structural and constitutional ways of reasoning as to the cases in which nullity ought to apply. On Lord Evershed’s approach, and similar to the pattern recognised under the ultra vires model, voidness is connected with the defect in the legal basis of a particular decision while invalidation without retrospective effect is more relevant to the defect in the exercise of jurisdiction that otherwise exists. Lord Reid’s chief consideration driving nullity is a common law principle of fair hearing as part of natural justice. Moreover, Lord Hodson in Ridge v Baldwin still allows some play to the approach that activities contrary to the essence of justice deprive a decision of its character of one having been made under a statute. Generally Ridge v Baldwin endorses the approach of nullity independent of the action undertaken with regard to the relevant matter by the appellant or respondent. Their Lordships’ observations as to the categorical consequences of nullity are also pertinent. Lord Reid suggested that ‘the only operative decision is that of the watch committee, and, if it was a nullity, I do not see how this statement

Ridge v Baldwin [1964] AC 40, at 80 (per Lord Reid). Ridge v Baldwin, at 140–1 (per Lord Devlin); ibid., 84 (per Lord Evershed). 182 Ibid., 136 (per Lord Devlin). 180 181

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by the Secretary of State can make it valid’.183 Lord Morris observed that, ‘[i]n the result, in my judgment, nothing occurred on March 18 to give validity to what the respondents had purported to do on March 7. Nor, in my view, did the action of the appellant in appealing to the Secretary of State have any such effect. If the decision of March 7 was a nullity and void the fact that the appellant appealed made no difference.’184 Thus, ‘the only operative decision is that of the watch committee, and, if it was a nullity, I do not see how this statement by the Secretary of State can make it valid’.185 The difference of these points from Lord Evershed’s approach is that, regardless of the position determined by parliament, the ground of nullity of the relevant decision was antecedent to putting the procedure of challenging the relevant act into operation and thus the latter was without prejudice to nullity in that case. The case of Hoffmann La Roche concerned the appellants’ decision not to obey the government’s administrative order and challenge it before courts, to which the government responded by seeking the injunction against such course of action. It was first stated by Lord Diplock that: The duty of the Crown to see that the law declared by the statutory instrument is obeyed is not suspended by the commencement of proceedings in which the validity of the instrument is challenged. Prima facie the Crown is entitled as of right to an interim injunction to enforce obedience to it. To displace this right or to fetter it by the imposition of conditions it is for the defendant to show a strong prima facie case that the statutory instrument is ultra vires.186

So the overall message from this is to emphasise the central role of courts in determining the validity issues as a common law matter, including interim validity issues. Pretty much compatibly with Kelsen’s views, there is seen to be no right of disobedience by the addressee of the relevant administrative act, and the common law approach to the centrality of courts in the process of challenge of that act. Lord Denning MR observed in Hoffmann La Roche before the Court of Appeal that ‘I have always understood the word “void” to mean that the transaction in question is absolutely void – a nullity incapable of any legal consequences – not only bad but incurably bad – so much so that all the world

185 186 183 184

Ridge v Baldwin, at 81 (per Lord Reid). Ibid., 120 (per Lord Morris). Ibid., 81 (per Lord Reid). Hoffmann La Roche [1975] AC 297, at 367.

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can ignore it and that nothing can be founded on it’.187 But then reverting to relative invalidity, stating that: A failure to observe the rules of natural justice does not render a decision or order or report absolutely void in the sense that it is a nullity. The legal consequences are best told by recounting the remedies available in respect of it. A person who has been unfairly treated (by reason of the breach of natural justice) can go to the courts and ask for the decision or order or report, or whatever it is, to be quashed, or for a declaration that it is invalid, that it has not and never has had any effect as against him. But it is a personal remedy, personal to him.188

By contrast to Lord Denning, Lord Diplock in the House of Lords accorded to this matter a somewhat constitutional dimension, placing it in the context of judicial authority to deal with executive acts. It would be: inconsistent with the doctrine of ultra vires as it has been developed in English law as a means of controlling abuse of power by the executive arm of government if the judgment of a court in proceedings properly constituted that a statutory instrument was ultra vires were to have any lesser consequence in law than to render the instrument incapable of ever having had any legal effect upon the rights or duties of the parties to the proceedings. Although such a decision is directly binding only as between the parties to the proceedings in which it was made, the application of the doctrine of precedent has the consequence of enabling the benefit of it to accrue to all other persons whose legal rights have been interfered with in reliance on the law which the statutory instrument purported to declare.189

On balance Lord Denning’s account is closer to Kelsen’s as it envisages that the relevant legal system can introduce various remedies for such cases, which do not have to be constrained to nullity. The options outlined by the Court of Appeal and House of Lords are precisely about the choice that the English legal system makes in this regard. As Wade and Forsyth explain, an act or order which is ultra vires is a nullity, i.e. void, and thus ‘utterly without existence or effect in law’. If an administrative act is not within the powers delegated under a statute, it has no legal leg to stand on, and the situation then is as if nothing has happened.190 Another rationale of absolute nullity is that, as Lord Wilberforce has put it, ‘when the court says that an act of administration is voidable or void but not ab initio this is simply a reflection of a conclusion, already reached on unexpressed grounds,

Ibid. (CA), 319. Ibid., 320. 189 Hoffmann La Roche, at 365. 190 Wade and Forsyth, 28, 247; see also P Craig, Administrative Law (8th edn, 2016), 743. 187 188

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that the court is not willing in casu to give compensation or other redress to the person who establishes the nullity.191 A fresh look was had at these matters in Boddington, where it was declared that: Subordinate legislation, or an administrative act, is sometimes said to be presumed lawful until it has been pronounced to be unlawful. This does not, however, entail that such legislation or act is valid until quashed prospectively. That would be a conclusion inconsistent with the authorities to which I have referred. In my judgment, the true effect of the presumption is that the legislation or act which is impugned is presumed to be good until pronounced to be unlawful, but is then recognised as never having had any legal effect at all.192

This is an approach that treats invalidity as an aspect of substantive law, to be enforced on its substantive terms whenever it comes before a competent court. Other cases have mirrored this approach. Lord Denning has specified in Laker that, ‘if the Secretary of State goes beyond the bounds of “guidance”, he exceeds his powers: and the Authority is under no obligation to obey him’.193 It has been similarly observed by the Privy Council in Mossel that ‘[i]t cannot be doubted that the OUR was perfectly entitled to act on the legal advice it received and to disregard the Minister’s Direction’.194 And, ‘once it was established that a statutory instrument was ultra vires, it would be treated as never having had any legal effect. That consequence follows from application of the ultra vires principle, as a control on abuse of power; or, equally acceptably in my judgment, it may be held that maintenance of the rule of law compels this conclusion.’195 The Privy Council in Mossel has reasoned thus: Subordinate legislation, executive orders and the like are presumed to be lawful. If and when, however, they are successfully challenged and found ultra vires, generally speaking it is as if they had never had any legal effect at all: their nullification is ordinarily retrospective rather than merely prospective. There may be occasions when declarations of invalidity are made prospectively only or are made for the benefit of some but not others. Similarly, there may be occasions when executive orders or acts are found to have legal consequences for some at least (sometimes called ‘third actors’) during the period before their invalidity is recognised by the court … All these issues were left open by the House in Boddington. It is, however, no more necessary that they be resolved here than there.196 193 194 195 196 191 192

Hoffmann La Roche, at 358–9 (per Lord Wilberforce). Boddington [1992] AC 143, at 155. Laker Airway, at 699–700 (per Lord Denning). Mossel [2010] UKPC 1, para. 44. Boddington, 156. Mossel, para. 44.

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What this means is that the court confronts the validity issues whenever they arise and providing solutions for various cases of nullity is fully within its gift. The English law as to validity of administrative acts is pretty much a work in progress, but that has not prevented courts suggesting the above-discussed outcomes when the exigencies of the pertinent cases have required it. In terms of applicable presumptions, Lord Diplock has emphasised that: it leads to confusion to use such terms as ‘voidable,’ ‘voidable ab initio,’ ‘void’ or ‘a nullity’ as descriptive of the legal status of subordinate legislation alleged to be ultra vires for patent or for latent defects, before its validity has been pronounced on by a court of competent jurisdiction … All that can usefully be said is that the presumption that subordinate legislation is intra vires prevails in the absence of rebuttal, and that it cannot be rebutted except by a party to legal proceedings in a court of competent jurisdiction who has locus standi to challenge the validity of the subordinate legislation in question.197

In the same spirit, Lord Diplock continues that the ‘locus standi to challenge the validity of subordinate legislation may be restricted, under the court’s inherent power to control its own procedure, to a particular category of persons affected by the subordinate legislation, and if none of these persons chooses to challenge it the presumption of validity prevails’.198 Acts exceeding power have no binding force under the valid legal order in the sense that they do not derive their force from any superior norm; in fact they exceed the remit of the conferral made under that superior norm. But the pure theory’s dual take on the concept of the unity of the legal system is to give the final word to the legal system itself. This perfectly reflects the role that common law courts have in this area of English law. Generally the pure theory suggests that the legal system itself provides for the invalidation framework (typically in written legislation), but in common law where law is what courts say it is, common law can justify disobedience to that which is not legitimately supported through the chain of authority. Unlike civil law systems, common law does not require that the particular type of invalidity and its implications be stipulated by the written legislation. There is no immediate correlation or correspondence between the finality of an administrative decision and the pattern of invalidation imposed through its judicial review. A decision could enjoy finality until judicially annulled, whether ab initio or as of the moment of quashing. Finality in this sense could only mean the binding force of the administrative decision until quashed. The English court’s practice broadly subscribes to such narrow, not wide, notion

Hoffmann La Roche, 366 (per Lord Diplock). Hoffmann La Roche, 366.

197 198

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of finality. A categorical exclusion of retrospective annulment contradicts the thesis of the unity of legal order.

4.13

JUDICIAL REVIEW OF LEGISLATION

Having dealt with judicial review of executive acts, we should now move to the theme of the review of primary legislation. In the UK law context, judicial review is expressive of the idea of the unity of a legal order and deriving binding orders from rules that validly authorise them. Challenging legislation or administrative acts before the courts serves the purpose of ascertaining their connection to their professed legal basis and thus their subsumption within the legal order. Judges and courts engage with the normative regression process, and need to go through all stages of that regression, if at times implicitly, to identify the basis of the legislation dealt with as well as the basis of their own authority. A court carrying out judicial review of administrative regulations essentially protects the authority of the conferring organ, typically the parliament, against the excessive use of that authority by the organ to which conferral was addressed, typically the executive. Judicial review thus understood is, therefore, a way to protect the constitutional position (not necessarily the contemporaneous political attitude) of the parliament and to ensure that the legislation it has enacted operates in accordance with the parliament’s, not the executive’s, intention. Laws LJ has specified in Cart that: This is not a denial of legislative sovereignty, but an affirmation of it: as is the old rule that Parliament cannot bind itself. The old rule means that successive Parliaments are always free to make what laws they choose; that is one condition of Parliament’s sovereignty. The requirement of an authoritative judicial source for the interpretation of law means that Parliament’s statutes are always effective; that is another.199

Kelsen is not overall sympathetic to the idea of judicial review of legislation, but concedes that written constitutions committing to the separation of power have instituted such review.200 Judicial review of legislation is an encroachment on the separation of powers, yet judicial review of legislation is instituted by constitutions that stress the principle of the separation of power.201 It seems that every particular legal system will come up with its own arrangement of the separation of power, and of what kinds of acts are subsumable within judicial

Cart, para. 39, at 1028–9 (emphasis added). GT, 280–1. 201 GT, 269, 280–1. 199 200

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review. If one contends that judicial review of primary legislation goes against the separation of power, the same may well be said of the review of secondary legislation, because courts would be seen as intruding into the decision-making of another branch of authority in both such cases. However, Kelsen admits that it is impossible to distribute three functions of government in such way that each branch exclusively exercises the relevant function, and no other organ can take part in its exercise. There is no legal order in which administrative and judicial authorities are excluded from legislating, even directly on the basis of the constitution.202 Kelsen thus emphasises that modern constitutions are more about preventing the concentration of particular tasks within the remit of one single organ or branch of the government, rather than watertight separation of their tasks.203 Judicial review of statutes is part of negative legislation, both in cases of review of legislation and of administrative regulations. The antagonism between positive and negative legislator is almost inevitable.204 After all, under any constitution, separation of power means that the three branches of the government are not loyal to any of the three, but all three are supposed to be loyal solely to the constitution. Overall, Kelsen’s approach is not blanket, but merely referential, emphasising that such judicial review of statutes is permissible whenever the constitution allows for it. In the conditions of the unwritten common law constitution that is up to courts to determine whether this is possible. Lord Mustill specified in Fire Brigades that: Parliament has a legally unchallengeable right to make whatever laws it thinks right. The executive carries on the administration of the country in accordance with the powers conferred on it by law. The courts interpret the laws, and see that they are obeyed. This requires the courts on occasion to step into the territory which belongs to the executive, to verify not only that the powers asserted accord with the substantive law created by Parliament but also that the manner in which they are exercised conforms with the standards of fairness which Parliament must have intended ... [This relates to] the minimum standards of fairness implicit in every Parliamentary delegation of a decision-making function ... [and is based on] the delicate balance of the unwritten rules evolved [through the judiciary].205

Lord Mustill essentially highlights that the separation of power in the UK does not mean that every single branch of authority exercises its peculiar task on exclusive terms. And, any blanket formulation of the principles highlighted

204 205 202 203

GT, 269–70. GT, 281–2. GT, 268–9, 272. Fire Brigades [1995] 2 AC 513, at 567 (emphasis original).

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in Lord Mustill’s reasoning in terms of the evolving common law constitution could be no more than a rule of thumb. The workable meaning of the separation of powers is of one grounded in the context and at the service of the constitution. Suppose parliament were to adopt unconstitutional laws, the executive to exceed conferred discretion and the judiciary to mis-apply laws, that would be anarchy, and saying that one branch of the government cannot interfere with the activities of another would undermine the entire legal system. If certain branches of government are entitled by the constitution to enact legislative norms, they also have to do that within the bounds of the constitution, and other branches may be called upon to ensure that this indeed happens. On this position, every branch of the government does what the constitution expects it to do. Kelsen considered it to be especially characteristic of English law to have judicial review of legislative decisions, and that courts have ‘prerogative to control legislation and administration, the deep-rooted belief that the rights of the individuals can be protected only by the judicial branch of the government’, and a principle of English law that ‘the concurrence of a court, as an authority independent of the legislator, must be obtained before the expression of the latter’s will can become a rule of conduct’.206 It is noteworthy that Kelsen speaks expressly of English law, but does not allude to the premise that acts of parliament are free from judicial review. Presumably, thus, his view of English law might have been that judicial review of legislation was not ruled out by the constitution. Kelsen emphasises that the political importance of the growth of judicial review of legislative and executive branches of the government was to ensure that the monarch, whose influence was significant in legislative and executive activities, would be controlled by courts independent of him, so that an absolute monarchy would evolve into a constitutional one.207 If a monarch should be under the control of law and courts, the same must hold true of democracy that operates within the framework of monarchical constitution. Policy-wise the position of the parliament is not that different from the executive; it may be said that parliament is sovereign owing to its democratic representation of the will of the public, but so are Ministers of the Crown, yet their decisions can be reviewed. Democratic legitimacy does not mandate absolute power of democratically elected public authorities, and is thus not an impediment of judicial review of statutes anymore than it is an impediment to the review of administrative regulations that also embody the will of the democratically elected government.

GT, 281. GT, 281.

206 207

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Lord Diplock has observed in Hoffmann La Roche that ‘a clear distinction can be drawn between an Act of Parliament and subordinate legislation’.208 Lawton LJ of the Court of Appeal has observed in the same case that ‘[s]tatutory instruments are devolved from statutes and take effect as such; but unlike statutes, a challenge can be made to their legislative paternity, as they may have been conceived by a Minister outside the enabling Act’.209 Judicial review thus understood serves the aim of preserving the viability of the chain of hierarchy arrangement. As Lord Denning MR suggested obiter in Hoffmann La Roche, parliament’s decisions cannot be vitiated for incompatibility with natural justice. ‘The constitution has assigned no limits to the authority of Parliament over all matters and persons within its jurisdiction. A law may be unjust and contrary to sound principles of government; but Parliament is not controlled in its discretion, and when it errs, its errors can only be corrected by itself.’210 This whole above approach broadly corresponds to the Wednesbury model, which is a way to accommodate utilitarian omnipotence of the State with the imperatives of the rule of law, so that the parliament’s authority is seen as unlimited and unfettered, yet the supremacy of the law is secured by constraining the executive within the legal limits that parliament has stipulated through the conferral. This perception no doubt provides comfort to those who like emphasising the difference between the primary legislation and secondary legislation in terms of their legal status and their reviewability by courts. However, the marriage of convenience between utilitarianism and the rule of law breaks down if courts give effect to pieces of primary legislation that are not compatible with the rule of law, for instance by infringing on constitutional rights or the constitutional status of the courts. In such case, both legislative and executive authorities appear to be placed above the law: the first case because of its perceived legislative omnipotence, and the second case because of being empowered through the conferral that is made in the exercise of that legislative omnipotence. Consequently, the perception that primary and secondary legislation are different in their impact on common law and in terms of their reviewability can hold true only so far. Judicial emphases on that difference have been case-specific, mostly by way of an obiter, and have thus fallen short of examining the pertinent position under the constitution. Indirectly at least, the pure theory’s emphasis on the essential similarity between law-making and

Hoffmann La Roche, 365. Hoffmann La Roche, 327. 210 Hoffmann La Roche (CA), 321. 208 209

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law-applying functions of State organs can provide the analytical ground to discern the true position. The House of Lords has observed that ‘[w]hen an enactment is passed there is finality unless and until it is amended or repealed by Parliament. In the courts there may be argument as to the correct interpretation of the enactment: there must be none as to whether it should be on the Statute Book at all.’211 Relevant to the Pickin approach is the pure theory’s point that the organ that is responsible for publishing the legislation or for applying it has the limited power to ascertain whether it is legislation properly adopted by the organ constitutionally empowered to legislate, but that does not have to include the judgment as to whether the law in question was adopted through the proper use of prescribed procedures. Such organs are obliged to establish that that which subjectively purports to be legislation is objectively legislation as well.212 Pickin provides for the initial criteria. What these criteria do, within the limits of their subject-matter, is to endow the legislation that is subjectively intended as one with the objective status of legislation, in line with the distinction between these two features underlined by the pure theory. Whether the formal or other criteria which legislation must satisfy in order to be applicable before the courts are many or fewer, in either case the relevance and legal effect of complying with or disregarding these criteria are common law matters to be determined by courts. That very same rule that a statute adopted by the Commons, the Lords and assented by the monarch counts as an act of parliament has entered the body of English law through the rule of common law determined by courts. Still, whether legislation can be reviewed due to its substantive content, for instance by second guessing parliament’s policy choices on the basis of natural justice, or due to its observance of constitutional fundamentals, is a different matter. The policy substance of legislation as such is not a recognised basis, nor is the procedure governing the process of adoption of legislation; what remains is only the compliance with constitutional requirements as to the limits of legislative authority. The English courts’ endorsement of the legislative supremacy of parliament with regard to socio-economic and related policies is premised on the courts’ recognition of the legislative discretion rule that enables the parliament to make socio-political choices endowed with legislative force.213 On the other hand, the courts’ concern with fundamental rights and the status of courts manifests that they regard the legislative discretion rule as subordinated to the principles of the constitution. In other words, and in

Pickin, 789 (per Lord Morris). H Kelsen, Reine Rechtslehre (1934) (‘RR’), 276. 213 See Ch. 3. 211 212

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full reflection of the requirements of the pure theory, the legislative discretion of parliament is both created by the constitution and limited by it. The task is to identify those rules that define the parliament’s constitutional status and powers. To illustrate, in written constitutions the issue of parliament’s compliance with constitutional instructions as to how and which law shall be adopted is not identical with parliament contravening the constitution. For, parliament can legislate contrary to the constitution in ways other than disregarding express constitutional instructions as to the content or matter of adoption of particular pieces of legislation. In other words, the scope of constitutional restrictions on the legislative power is wider than that of the constitutional clauses addressed to and restraining the freedom of a legislative organ. And those other parts of it are no less superior to ordinary legislation. Kelsen suggests that ‘[i]f no organ different from the legislative is called upon to inquire into the constitutionality of statutes, the question whether or not a statute is constitutional has to be decided only and exclusively by the legislative organ itself. Then, everything that is passed by the legislative organ as a statute has to be accepted as a statute in the sense of the constitution.’214 A discrepancy in this reasoning is that the legislative organ, which is a political organ, does not decide on the constitutionality of statutes (even though it may implicitly or expressly form the view on that at some stage of legislative procedure); it just adopts them. The mainline essence of legislative procedure is policy-driven. If the pure theory’s initial criteria are applied: the position that laws enacted by the legislative organ are not reviewable is premised on the position that the constitution assigns the task of determination of the constitutionality of statutes solely to the organ that has enacted those statutes. And then what Kelsen does is to make a reverse inference, that is to infer from the fact of the absence of the review power conferral in the constitution a further, more substantial and extensive constitutional position, namely that the constitution itself empowers the legislature to legislate not only the way that is determined by the constitution and compatibly with it, but also in any other conflicting manner the legislature itself deems it fit.215 In other words, the constitution

GT, 156. ‘Das bedeutet aber, dass der Sinn der die Gesetzgebung regelnden Normen der Verfassung nicht der ist, dass gültige Gesetze nur auf die durch die Verfassung direkt bestimmte Weise, sondern dass sie auch auf eine andere, durch das Gesetzgebungsorgan selbst zu bestimmende Weise zustandekommen können … Die Verfassung enthält eine direkte und eine indirekte Regelung der Gesetzgebung; und das Gesetzgebungsorgan hat die Wahl zwischen beiden’; RR, 276–7; more enhanced attribution of purpose to the constitution, ‘the constitution aims not only for the validity of the constitutional 214 215

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authorises that it can be violated by the legislature and confers the legislative effect to such violations of the constitutions. This is a too far-reaching thesis asserted by Kelsen on blanket and imperative terms. This approach would validate laws to be adopted through the procedure other than with the participation of all three constituent elements of the UK parliament. Courts which operate with a uniform concept of primary legislation would not attribute the legislative element of such enactments, which would, on pure theory’s terms, be subjectively intended as legislation but not objectively qualified by the existing legal order as an enactment amounting to legislation. In short, courts would not admit that the UK constitution impliedly enables the parliament to legislate through means other than the one that includes the will and participation of all three of its constituent elements. That much is already inherent in the reasoning developed in Pickin and Jackson, suggesting that while parliament enjoys certain freedoms with regard to its legislative activities, the outer limit of that freedom is controlled by courts. In any possible case, the starting point is the legal position under the constitution, not the will of the parliament. Moreover, how can the legislative organ decide whether the law it enacts is constitutional? Through the process of legislation, if the legislative organ is alerted to constitutional defects and expressly or implicitly forms a view on that matter, and adopts legislation anyhow; or later on agrees or refuses to amend or abolish it. In practice such eventualities are unlikely. In any case that is merely a political decision; parliament as a political organ does not form a juridical view as to whether legislation conforms to the constitution. That means that Kelsen’s position216 is not wholly accurate. The constitution does not make legislature a legal judge of the constitutionality of legislation it enacts, through the process of self-review, as it were. Instead, the position merely is that the constitution does not (expressly) designate any organ that ought to perform such constitutional review. The most that could be inferred from this is that unconstitutional laws are binding according to the constitution – by itself a rather absurd proposition. Instead, the consequences down the line should be drawn from the lack of allocation of such constitutional review function to any organ whatsoever, rather than from any implicit privileging of the legislative organ first to adopt laws and then possess the exclusive review power with regard to them. The first position leaves the clarification of uncertainties to the process of the statute, but also (in some sense) for the validity of the “unconstitutional” statute’. Such intention of the constitution can be identified if the constitution provides that the unconstitutional statute can be annulled only through the procedure prescribed under that constitution. PLT, 72. 216 ‘Dann ist nur das Gesetzgebungsorgan selbst ermächtigt zu entscheiden, ob das von ihm beschlossene Gesetz verfassungsmässig’; RR, 276.

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judicial interpretation of the constitution, while the second position somewhat prejudicially presents the legislative organ’s position as privileged and other organs’ position as diminished. Kelsen’s view is premised on the constitution being a complete unity, but the step that it validates one position because it does not expressly state another is not plausible. Kelsen’s position may be more understandable with regard to written constitutions which single out the organs competent to carry out such review. It is here that the civil law/common law divide, however rough and vague in this area, manifests itself vividly. Civil law courts have to keep within the letter of the written constitution. Common law courts have the final word on what the law is, including in relation to the constitution. But that does not have a crucial effect because in the end, the position depends on the constitution itself, not on the legislative will. Moreover, judicial review of secondary legislation and administrative decisions has originated and operates in English law purely on the common law basis, without any legislative conferral of such authority to courts; thus reviewing an act of parliament involves no greater transgression than the review of secondary legislation; the position that primary legislation is immune from judicial review while secondary legislation is not is itself a common law position and judicial development, and one stated merely as obiter. Reasons for differentiation may be that reviewing secondary legislation is to re-state the loyalty to the will of parliament which has made the relevant conferral to the executive; the loyalty here goes to parliament’s constitutional position and the content of its primary legislation, not to its contemporary will and political agenda, which in practice is just as likely to sympathise with the executive decision that is being reviewed. However, the sequence of this argument would be faulty as it would pretend that, while there is legislative conferral in the case of secondary legislation, the terms of which conferral courts uphold in the process of review, there is no such conferral anywhere in the legal system in relation to the parliament and its legislative authority or that, alternatively, such conferral may be there but courts are not allowed to uphold its terms through judicial review. The first assumption implies that the legislative role of the parliament is constituted and validated outside the legal system and courts are bound to accept that extra-legal position without condition and on blanket terms; the second assumption implies that courts are obliged to respect and carry out laws that exceed the authority of the organ that has enacted them. The effect of all this is to suggest, on Kelsen’s terms, that the unwritten constitution of the UK has granted the parliament the exclusive power to determine the constitutionality of legislation that it has adopted. In the jurisprudence of English courts the evidence of obiter dicta regarding the omnipotence of parliament is hardly sufficient to validate either of the above

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two assumptions. The position that the UK constitution impliedly designates parliament as the sole judge of the constitutionality of its own enactments is not tenable. It furthermore goes beyond the scope of the Diceyan claim that parliament can make or unmake any law whatever, qualitatively different from assessing constitutionality. The position could be summarised thus: there is a constitutional rule conferring legislative authority to the parliament; there is no rule in English law that parliament alone determines, on legal terms, the constitutionality of its own legislation; nor is the review role of courts excluded by any enactment; a common law constitution that contains a legislative supremacy rule also requires that parliament’s legislative authority is exercised compatibly with other parts of the constitution such as fundamental rights and the status of the judiciary. Common law courts (the High Court and courts above) derive their powers from common law and operate to safeguard common law liberties independently of the legal basis on which legislative supremacy rests. Laws LJ observed in Cart that the High Court ‘is independent of the legislature, the executive, and any other decision-makers acting under the law; and is the principal constitutional guardian of the rule of law’.217 The High Court’s jurisdiction was described as original, general, unlimited, very high, and transcendent,218 that is neither derived from nor dependent on any other constitutional authority. The underived constitutional role of the High Court to act in the face of parliamentary enactments runs, then, not just to ascertaining the meaning of those enactments, but also parameters of the power through the use of which those enactments have been produced. Laws LJ similarly emphasises the dependence of the viability of that legislative power, and of legislative intention, on the concordant judicial action: If the meaning of statutory text is not controlled by such a judicial authority, it would at length be degraded to nothing more than a matter of opinion. Its scope and content would become muddied and unclear. Public bodies would not, by means of the judicial review jurisdiction, be kept within the confines of their powers prescribed by statute. The very effectiveness of statute law, Parliament’s law, requires that none of these things happen. Accordingly, as it seems to me, the need for such an authoritative judicial source cannot be dispensed with by Parliament. This is not a denial of legislative sovereignty, but an affirmation of it: as is the old rule that Parliament cannot bind itself. The old rule means that successive Parliaments are always free to make what laws they choose; that is one condition of Parliament’s

R (on the application of Cart) v Upper Tribunal [2009] EWHC (Admin), para. 39, [2010] 2 WLR 1012, at 1029. 218 Ibid., paras 44–51. 217

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sovereignty. The requirement of an authoritative judicial source for the interpretation of law means that Parliament’s statutes are always effective; that is another.219

This is precisely the common law constitutionalism approach, identifying both specific implications of and limits on legislative supremacy under common law that cannot be legislatively dispensed with, because the High Court’s jurisdiction is independent of parliament’s authority and is part of common law, reversing which is impossible without encroaching upon constitutional foundations that are, prima facie at least, beyond the reach of legislative supremacy. This dual supremacy construct is, then, at the roots of the constitution. Thus, as contrasted to the blanket position that acts of parliament cannot be reviewed by courts, according to a broader and more dynamic view of common law, courts will confront the relevant legislation then and there, when the need arises, and those obiter dicta to the opposite effect do not invariably have to bind them. To illustrate further, the US Constitution does not provide for judicial review but the US Supreme Court in Marbury v Madison has deduced this authority from the primacy of constitution over acts of Congress. The Supreme Court’s starting point was that: The Constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and, like other acts, is alterable when the legislature shall please to alter it … So, if a law be in opposition to the Constitution, if both the law and the Constitution apply to a particular case, so that the Court must either decide that case conformably to the law, disregarding the Constitution, or conformably to the Constitution, disregarding the law, the Court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty … Those, then, who controvert the principle that the Constitution is to be considered in court as a paramount law are reduced to the necessity of maintaining that courts must close their eyes on the Constitution, and see only the law. This doctrine would subvert the very foundation of all written Constitutions. It would declare that an act which, according to the principles and theory of our government, is entirely void, is yet, in practice, completely obligatory. It would declare that, if the Legislature shall do what is expressly forbidden, such act, notwithstanding the express prohibition, is in reality effectual. Could it be the intention of those who gave this power to say that, in using it, the Constitution should not be looked into? That a case arising under the Constitution should be decided without examining the instrument under which it arises? This is too extravagant to be maintained. In some cases then, the Constitution must be looked into by the judges. And if they can open it at all, what part of it are they forbidden to read or to obey?220

Cart, para. 39, at 1028–9 (emphasis added). Marbury v Madison, 5 U.S. (1 Cranch) 137, at 177–80 (1803).

219 220

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Thus, the Congress is not the sole organ to decide whether an act of Congress is constitutional, even if the Constitution does not expressly endorse that any organ is tasked with that authority. Courts could review the legislation that contradicts the constitution. Much as the US Supreme Court was dealing with a written constitution, it was dealing with the constitution whose authors presumably had the opportunity to introduce judicial review of statutes and did not.221 The logic of Marbury is that even if the US Constitution does not specifically provide for the procedure through which unconstitutional statutes should be annulled, that fact does not discard the principle that legislation has to comply with the constitution. This latter matter is exclusively legal and courts then determine it in cases when it arises. The position here is more favourable towards judicial review of statutes than in the case of some written constitutions that may provide procedural conditions or restrictions for such judicial review to be carried out, or even rule it out (as in the Netherlands). In common law jurisdictions, these matters would be in the hands of courts. Therefore, the position in the UK’s unwritten constitution is not that different from that under the written constitution of the US. The possibility for a common law court to assess the relationship between the constitution and the statute derives from that factor. Goldsworthy’s view that judges may disobey statutes ‘on the ground that their legal duty is overridden by a moral duty to disobey’222 is not compatible with the pure theory’s premise as to the unity of the law, and broadly with one of the central theses of the pure theory that non-legal factors do not determine or prejudice the validity of legal principles, which approach should be applied with even greater cogency to areas of constitutional importance. If the law regulates its own creation, then the basis for disobeying any legal prescription has to derive from the law itself, not from any extra-legal considerations. In the conditions of an unwritten constitution, such basis could exist only in common law. Kelsen suggests that an unconstitutional law can only be voidable not void.223 However, if a statute were to be reviewed by courts, then determination of what kind of invalidity would follow would depend on the courts’ determination as is the case with the executive’s acts. If courts can protect Instead, the Supreme Court cited a general presumption that ‘[c]ertainly all those who have framed written Constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be that an act of the Legislature repugnant to the Constitution is void’. Ibid., 177. 222 J Goldsworthy, Sovereignty of Parliament (2010), 10. 223 GT, 157. 221

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the integrity of conferring statutes when they review executive decisions, so should they be able to protect the integrity of constitutional rules that confer the legislative authority to the parliament and delimit its scope. The duty of judicial obedience of statutes and the absence of direct judicial review are neither coterminous nor coextensive.

5. The basic norm and efficacy of the legal system 5.1

THE FUNCTION OF THE BASIC NORM

The unity of the legal system requires identifying the single chain of authority that encompasses and validates all legal prescriptions. With regard to any legal system, the chain of normative or analytical regression, aimed at identifying the ultimate basis of the legal order, stops at some point, at which point no more positive legal regulation can be found to rationalise the binding force of those legal prescriptions that derive their binding force from a source of positive law. There is no immediate positive law basis available to sustain the legitimacy of the sources of law themselves, and the quest for identifying the ultimate basis of authority inevitably and invariably arises. Overall, jurisprudence has worked out three ways of rationalising the ultimate basis of the legal system: extra-legal justification based on natural law, religious elements or power, from within by reference to constitutional patterns of the legal system (Hart, Austin), and the basic norm (Grundnorm) that evidences the efficacy of the legal system, which could be identified through external observation of the operation of that legal system (Kelsen). As emphasised by one commentator: ‘It is the basic norm that establishes the legal system as a possible system of law while also establishing the difference between the system of natural law and that of positive law.’1 The positivist legal science has to rationalise the ultimate validity of legal systems, without which the legal system as a unity and as an arrangement of normative hierarchy cannot hang together. However, a positivist legal theory has to do this the way that does not replicate any non-positivist theory’s explanation of what validates, justifies or legitimises the system of positive law. Kelsen suggests that ‘the basic norm of law can only be the fundamental rule, according to which the legal norms are to be produced; it is the funda-

A Carrino, Logistic Normativism: The Wiener Rechtstheoretische Schule, in E Pattaro and C Roversi (eds), Legal Philosophy in the Twentieth Century: The Civil Law World (2016), 107 (emphasis original). 1

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mental condition of law-making’.2 All other norms are produced through the will of a constitutionally entitled organ; the basic norm itself is not so produced and it is not an act of will. The basic norm is resorted to in the regression process when, passing the level of the constitution there are, quite simply, no more rules of positive law on which the status of the constitution or any other legal rule could rely. The identification of a legal system’s basic norm amounts to the ultimate point at which the pure theory stops searching for the normativist explanation and turns to the socio-historical explanation. As Kelsen accepts that all positive law is a human creation, the pure theory has to demonstrate the connection between a legal system and its socio-historical underpinnings, by reference to facts of real life that have taken part in the real world. As Harris comments, ‘Kelsen asserts that the grundnorm is presupposed in juristic thinking to serve certain logical purposes. If these purposes are in fact fully served without presupposing the grundnorm, it is a hypothesis without function and therefore a worthless piece of theorising.’3 These purposes are to identify the reality and identity of the legal system, and thus its ultimate legitimacy; and also to identify the basis on which the unity of the legal system rests, tracing all commands back to the single basis of their legitimacy. Quite simply, the formulation of the entire normative hierarchy arrangement which presents in any and every legal system could be moot unless the reality of that legal system is also identified and demonstrated. Therefore, Kelsen suggests that ‘[b]asic norm is thus not a product of free invention. It refers to particular facts existing in natural reality, to an actually laid down and effective constitution and to the norm-creating and norm-applying facts in fact established in conformity with the constitution.’4 The basic norm states conditions on which the empirical material can be more closely defined as positive law by the juridical science.5 In other words, the basic norm helps understanding what is inside and what is outside the legal process; the pure theory presents the basic norm as a methodological necessity because without it legal science cannot relate to the actually existing and operating legal order. Kelsen explains that the basic norm needs to be presupposed if the subjective meaning of the acts established on the basis of this constitution, creating H Kelsen, The Pure Theory of Law, Part II, 51 Law Quarterly Review (1935), 517 (‘LQR’), 518. 3 JW Harris, When and Why Does the Grundnorm Change? 29 CLJ (1971), 103, at 106. 4 H Kelsen, The Function of a Constitution, in R Tur and W Twinning (eds), Essays on Kelsen (1986) (‘Constitution’), 115. 5 H Kelsen, General Theory of the Law and State (1940) (‘GT’), 405. 2

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positive legal norms, is to be interpreted as their objective meaning.6 In other words, the basic norm rationalises the fact that commands subjectively intended as binding also objectively have that binding force, that they are not just some person’s or entity’s bare will (whether supported by appropriate power or not), but that they are commands that the established legal order enables that person or entity to issue to its addressees with binding force. The basic norm is not enacted as other norms are and has merely the hypothetical validity. The efficacy of the legal system it relies on has to do with the real socio-historical facts and processes. This is how these two initially different concepts, a valid norm and a factual efficacy, could analytically sit together. The pure theory derives the validity of the total legal order from its factual efficacy, and the basic norm validates the legal requirement that prescriptions of the efficaciously established legal order must be obeyed. If the State as political organisation exists only by virtue of a valid legal order,7 then the basic norm can rationalise the existence and origins of a particular State by reference to the characteristics of the legal order through which that State has been constituted. Thus, the establishment of State origins is consequential upon the ascertainment of the fact that an efficacious and valid legal order has been established, because it is only by the latter through which the former can be established and function. In relation to Grundnorm, ‘the ultimate hypothesis of positivism is the norm authorising the historically first legislator’.8 That is the moment when a legal system worthy of the name has emerged in the relevant time and space. Kelsen observes that ‘[i]f, further, we ask as to the validity of the [current] constitution, on which repose all the laws and the acts which they have sanctioned, we come probably to a still older constitution and finally to an historically original one, set up by some single usurper or by some kind of corporate body’. It is the latter who have first established the legal order and have intended it to be binding.9 Since then the total legal order has been in place. The initial emergence of State will cannot be explained by State will, for an act of the creation of a State cannot be a State act. There could have been no legal order before the creation of the first legal order.10 However, and while the establishment of the State is premised on the emergence of a basic norm which rationalises the efficacious operation of the State legal order, not every change H Kelsen, Professor Stone and the Pure Theory of Law, 6 Stanford Law Review (1965), 1128 (‘SLR’), 1149. 7 GT, 190. 8 GT, 116. 9 LQR, 518. 10 H Kelsen, Hauptprobleme der Staatsrechtslehre Entwickelt aus der Lehre vom Rechtssatze (1923) (‘Hauptprobleme’), 466. 6

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of the basic norm needs to involve the extinction of the State whose legal order the basic norm rationalises. Raz correctly suggests that basic norms, presumably of various legal systems, have different contexts depending on what legal system they relate to. ‘They are all called basic norms not because of their content but because they all share the same structure, the same unique position each in its own system, and because they all perform the same functions.’11 In that sense, the normative content of a basic norm is only referential; it makes reference to the actual patterns of constitution and law-making in the relevant society as have efficaciously amounted to a functional and operational legal system. Basic norm is not laid down by any law-making authority and it is not a product of will as all other legal norms invariably are; instead, it is a product of that socio-historical process which is responsible for the establishment of the legal system and its law-making authorities in the first place. Every legal order has only one basic norm; suggestions that basic norms may evolve within the single legal order, such as that of the UK,12 are misleading. The basic norm cannot evolve the same way as substantive law, including important constitutional rules, evolves. The basic norm rationalises the very existence of a total legal order, it is its foundation and its evolution means the demise and replacement of the legal order which it sustains. Raz has criticised Kelsen regarding independence of a colony, with regard to a putative situation where ‘country A had a colony B, and that both countries were governed by the same legal system’, and ‘A has granted independence to B by a law conferring exclusive and unlimited legislative powers over B to a representative assembly elected by the inhabitants of B’. Raz suggests that, under Kelsen’s approach that all the laws belonging to one chain of validity are part of one and the same legal system ‘the constitution and laws of B are part of the legal system of A. For B’s constitution and consequently all the laws made on its basis were authorized by the independence-granting law of A and consequently belong to the same chain of validity and to the same system.’13 It is, however, somewhat curious to contradict Kelsen’s theory of basic norm as the foundation of the unity of a legal system by using a hypothetical example relating to one legal system splitting into two legal systems, yet maintaining the appearance of remaining a single legal system. There is nothing in the pure theory that would enable us to assume that the basic norm – one of any legal system whatsoever – provides the analytical or normative tool to rationalise the connection between the two legal systems and present one

J Raz, The Authority of Law (1979), 144. D Lloyd, The Idea of Law (1981), 197–8. 13 Raz, 128. 11 12

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as the basis of the validity of another. Instead, the pure theory invariably and uncompromisingly endorses the directly opposite approach: one basic norm, one legal system. This approach is further in accordance with the nature of the process through which colonial possessions have acquired independence at various stages of history and in various parts of the world. To all intents and purposes, the independence of a colony means the severance of ties with the former sovereign. For instance, the 1776 American Declaration of Independence suggested that the American colonies were ‘Absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved’. An agreed grant of independence is still the grant of independence in the very same sense. For instance, section 7(a) of the 1947 India Act has provided that ‘His Majesty’s Government in the United Kingdom have no responsibility as respects the government of any of the territories which, immediately before that day, were included in British India’. The idea of separating the legal orders from dominions is also embodied in the 1931 Westminster Statute, providing that ‘No Act of Parliament of the United Kingdom passed after the commencement of this Act shall extend, or be deemed to extend, to a Dominion as part of the law of that Dominion, unless it is expressly declared in that Act that that Dominion has requested, and consented to, the enactment thereof’. Dominions thus became separate legal orders and the above provision was meant precisely to emphasise this line of separation between the UK’s and dominions’ legal orders. The UK legislation professes not to extend to the dominions. The Westminster Statute did not regard the dominions’ legal orders as authorised by the UK legal order any more. A similar approach appears to be more vividly reflected in the 1979 Zimbabwe Act: ‘On and after Independence Day Her Majesty’s Government in the United Kingdom shall have no responsibility for the government of Zimbabwe; and no Act of the Parliament of the United Kingdom passed on or after that day shall extend, or be deemed to extend, to Zimbabwe as part of its law’. Curiously enough, agreed grants of independence say the same thing as the US Declaration of Independence says with regard to the relationship between the colony and the empire. Similarly, had Scotland voted to become independent in 2014 and seceded with the consent of Westminster, that would create afresh a discrete and new legal system in Scotland. The outcome would be the severance of legal ties with the rest of the UK, not the maintenance of the single basic norm with it as the analysis of Raz would have it. Thus, if a colony becomes independent with the consent and approval of the mother-State that had sovereignty over it, then the pure theory does not require holding that both the former sovereign and a newly independent State belong to the same system; instead, the independence of a colony manifests the creation of a new legal order in it with the consent and agreement of both

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entities, and thus to lead to the establishment of that legal order’s historically first constitution. There are now two legal orders not one, and each has their own basic norm and hierarchical chain of the validity of legal norms. In addition, the example of the agreed grant of independence to a colony also, if incidentally, illustrates the difference between the basic norm and the constitution. As such, the grant of independence merely rationalises the basic norm of the new legal order thereby established; that basic norm merely enables the newly emerged legal order to introduce that legal order’s historically first constitution. It does not pre-determine the content or the manner of the adoption of that constitution (unless the mother-State and the colony have agreed to the opposite effect), which is a purely domestic matter for the entity that becomes independent. The criticism of Raz that ‘Kelsen’s mistake is in disregarding the facts and considering only the content of the laws’,14 is therefore misplaced. For, both in fact and in law, the consensual secession of a new State amounts to the creation of a new legal order from the viewpoint of both entities. It amounts to separation of legal orders, severance of normative connection between them.

5.2

BASIC NORM AS AN ELEMENT OF THE POSITIVIST THEORY

The analytical construct of the basic norm fits with the overall priority of the pure theory that at no level should the extra-positivist rationalisation of legal systems enter the realm of theoretical explanation of the law. Kelsen’s historical focus on the basic norm is part of his effort to liberate the legal analysis from ethics and natural law. The basic norm thus rationalises the legal order as a man-made order. One commentator suggests that the basic norm ‘seems meaningless except either as a reference to the fact that people accept the procedures laid down in the constitution, or as a moral axiom that people ought to accept these procedures’.15 However, the pure theory holds that the basic norm is a mere positivist rationalisation of a legal order being both normative (not merely factual) and not being driven by natural law or religious justification.16 Nor does it aim to secure ‘justice’ of the legal order. It merely aims at rationalising Ibid., but Raz also acknowledges that ‘[t]his criticism does not directly affect Kelsen’s theory of the basic norm’. 15 G Hughes, Validity and the Basic Norm, 59 California LR (1971), 705; however, striking a critical note that ‘[a]ssertions that we ought to comply with the constitution must be supported by argument drawn from social fact and moral principles’ (emphasis original). 16 GT, 116. 14

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the existence of a positive legal order.17 Kelsen also explains that the notion of the social contract is not suitable for the juridical method, because it is an attempt at the moral justification of the law, and represents a particular moral view of the State.18 D’Entreves describes Kelsen’s dispensation of natural law and religious justifications of a legal order as ‘the Achilles’ heel of modern positivism’, because ‘the recognition that the ultimate test of the validity of law lies beyond law itself is nothing but a natural law proposition’.19 This thesis pretends that anything that is not positivist ought to be part of natural law. That is, however, hardly accurate, because Kelsen’s basic norm refers to socio-historical phenomena that have taken place at the pertinent historical moments. These phenomena have not produced a natural law imperative that a new legal system ought to be created. They merely, and in fact, have amounted to the efficacious establishment of that legal order which could henceforth operate through producing the binding legal prescriptions. In fact Kelsen is as clear as he could be that the basic norm does not pre-determine the acceptable content of any particular rules of positive law; it merely rationalises how historically it has happened that the particular legal system became able to make those rules of whatever content and expect their obedience from individuals. Contrary to the suggestion by Wolfgang Friedmann, the ascertainment of the effectiveness of a total legal order does not involve any political preference or any assessment of the desirable type of effective government.20 This task merely requires the ascertainment that a particular system of law and government, whatever its character or desirability, has in fact been effectively established in a particular time and space. For, while the natural law thesis, or one of reason or ethics, that the relevant legal system is good and ought to be obeyed, is subjectively intended to be an authoritative legitimising claim, objectively it is a mere opinion, however influential or widely held in the relevant circumstances or conditions. It does not rationalise how that system of positive law has come to exist and how efficaciously it operates. The pure theory, by contrast, suggests the basic norm as a tool for socio-historical rationalisation of the establishment and ultimate basis of validity of the legal system.

GT, 402. ‘Der Staatsvertrag ist somit eigentlich keine rechtstheoretische, sondern eine ethische Fiktion, die Fiktion einer moralischen Weltanschauung. Eine rechtstheoretische Betrachtung muß gerade diese Fiktion – mit der Vorstellung einer sittlichen Begründung des Rechts – fallen lassen’; H Kelsen, Zur Theorie der juristischen Fiktionen. Mit besonderer Berücksichtigung von Vaihingers Philosophie des Als Ob, 1 Annalen der Philosophie (1919), 630 (‘Fiktionen’), 651. 19 AP d’Entreves, Natural Law (1970), 104 (emphasis original). 20 W Friedmann, Legal Theory (5th edn, 1967), 285. 17 18

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Pointing to valid and observable reasons as to why the relevant authority as part of the legal system is in a position to prescribe and enforce legal rules. The purification of the positivist legal method means, again, its emancipation from the dominance of extra-positivist theories. The basic norm is purely factual and value-neutral. The chief merit of Kelsen’s handling of the basic norm is the connection between the initial hypothesis as to the validity of the legal order and the totality of legal relations derived from it.21 The basic norm rationalises the operation of a legal system as a single whole, comprising all its elements. Thus, ‘the basic norm constitutes, as a common source, the bond between all the different norms of which an order consists’.22 It constitutes the unity of a legal order.23 The basic norm may foresee creation of legal norms through legislation, custom or judicial practice.24 This is especially pertinent in the conditions of an unwritten constitution in the UK, which revolves around the relationship between the parliament and courts. This approach will compel searching for the origins and basis of the English legal system in factors other than those described as ultimate or self-sustaining, or axioms or obvious facts that are presented as needing no verification, or whose interpretation did not, at one time, give rise to much controversy and disagreement, but subsequently disagreements have emerged with regard to those axioms, such as one relating to the nature of the legislative sovereignty. Raz has critiqued Kelsen’s thesis ‘that disregarding the basic norm, all the positive laws of a system may belong to more than one validity chain. Some may owe their validity to a customary constitution while others derive their validity from an enacted constitution. It is only the basic norm that unites them in such a case in one chain of validity by authorizing both constitutions.’ Raz further suggests that even if one: succeeds in establishing that at least two sets of norms are effective in the society, one, a set of customary norms, the other, of enacted norms, there will be nothing a Kelsenite can say to help him decide whether or not they form one system or two. There is nothing in the theory to prevent two legal systems from applying to the same territory. Everything depends on the ability to identify the basic norm, but it cannot be identified before the identity of the legal system is known. Therefore, the basic norm cannot solve the problem of identity and unity of legal systems, and Kelsen has no other solution.25

23 24 25 21 22

Friedmann, 285. GT, 111. GT, 124. GT, 113. Raz, 128–9.

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This claim does not seem to be accurate. The identity of the legal system for the pure theory is the identity of it in its totality, as opposed to the identity of particular patterns of law-making and sources of law. The whole construct of the pure theory is meant to evade imagining those particular frameworks (written or unwritten law) as legal systems on their own. When these particular frameworks cohabit in the same territorial space and apply to the same range of persons, they cannot function in an orderly manner unless they belong to the same legal order that is a unity. Otherwise a legal chaos would obtain, and one of the principal aims of the pure theory is precisely to rule out such legal chaos.26

5.3

BASIC NORM AND THE CONSTITUTION

If the pure theory focuses on actual and real constitutions, then the process of the establishment of such constitutions must also be identified. ‘Thus the first form of the constitution, that is, a law-making act of the highest degree, is execution of the basic norm.’27 The constitution is the ultimate basis and authority for the validity and binding force of all legal norms. The basic norm requires that the legal order operate on the basis that constitution must be obeyed. Both the concepts of constitution and basic norm occupy key places within the pure theory, but they are not identical. The constitution (whether codified or not) is a set of positive legal rules that determine the ultimate basis for the law-making authority. The basic norm does not prescribe that the constitution shall be obeyed the way that other norms prescribe the conduct required of individuals or State organs. Instead, the basic norm focuses on the historical and social facts demonstrating how the constitution (current or previous) and legal order were in fact established in the relevant society by social forces that control the relevant society in time and space and began to be obeyed. The basic norm inherently refers to the constitution and allocation of law-making and law-enforcement authority under it.28 Basic norm does not pre-determine the substance and content of constitutional norms. The basic norm merely illustrates that the legal order premised on the particular constitution has been effectively established and operating. The relationship between basic norm and the constitution can vary depending on the type of relevant legal order and constitution. Kelsen’s starting point

26 See Ch. 4 on how English law deals with the relationship between statutory law and common law. 27 LQR, 522. 28 GT, 115–16.

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is that the basic norm is a norm of origin (Ursprungsnorm) through which the highest legal authority is legitimised. In cases of absolute monarchy the basic norm would suggest that coercion should be exercised on condition and in the manner determined by the monarch,29 not least because that would be the highest authority that is actually obeyed and effectively functions. Kelsen further explains that the basic norm of absolute monarchy is itself the constitution in the sense of legal logic.30 This is because absolute monarchies have no other constitution. There can, however, be cases where the basic norm legitimises a constitution which does not allocate the entirety of public authority to one person or organ, but distributes it among various organs. In such cases the basic norm is not a mirror-image of the scope of authority of one particular organ. But in all cases the basic norm is a mirror-image of the material constitution, whatever the latter’s content may be. The basic norm thus amounts to the constitution’s rule of origin (unless, of course, that origin could be more conveniently traced to the previous constitution). It has been correctly emphasised that the basic norm ‘is not the ought propositions of the constitution, but rather an ought proposition about the constitution’.31 The actual or previous constitution may in some cases empirically illustrate the basic norm, or provide a link to a historically antecedent constitutional moment whereby the legal system in question has been established. In the case of an unwritten constitution, the historically developed model of constitutional balance may itself expose the evidence of what the basic norm is (unlike written constitutions that represent a one-off written product of the legal system that has been established through relevant historical process). In any case, however, the two are not analytically inseparable, even if they empirically overlap. If the basic norm is not taken into account, then there is simply no ground on which the constitution must be obeyed. For, the constitution’s binding force does not derive from the constitution itself any more than the binding force of any primary or secondary legislation derives from that relevant piece of legislation. The binding force of any legal instrument derives from the authority of an organ that has adopted that instrument. As there is no positive legal rule, written or unwritten, that would endow the decision of the constitution-making organ with validity and binding force, there remains no other factor of real life than resorting to the basic norm according to which a legal order efficaciously established must be obeyed according to the terms of its constitution.

H Kelsen, Soziologishe und Juristische Staatslehre (1922) (‘SJS’), 94. Ibid. 31 Hughes, 704 (emphasis original). 29 30

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It is this efficacy that actually confers the requisite legal authority to the constitution-maker. The men who have established the relevant constitutional order ought to have been effectively in the position to establish the constitution and legal order and thus ensure that those would be obeyed by the population. This way, the basic norm completes the chain of analytical reasoning and puts the stop to the analytical process of regression to discover the ultimate foundation of the legal system. This approach is further in accordance with the major positivist thesis that to explain any legal authority, a source of its conferral must be found. The pure theory finds this source in facts of real life, not in extra-legal justifications. The pure theory thus retains and preserves its purity.

5.4

CRITICISMS OF KELSEN’S USE OF THE BASIC NORM

Joseph Raz has commented that it is Kelsen’s ‘theory of the basic norm that has attracted most attention and captured the imagination. It has acquired enthusiastic devotees as well as confirmed opponents.’32 To illustrate, Lloyd suggests with regard to Kelsen’s point that legal method could not go behind the basic norm, that it sounds like the world being sustained on the back of an elephant, without us being able to enquire into what sustains the elephant itself.33 But such analogy with the natural world is misplaced. The reason that legal method cannot go behind the basic norm simply is that there is nothing positively legal behind it. There is simply no other positivist tool for showing legal foundations for the constitutional authority. The basic norm is sustained by socio-historical facts and circumstances which account for the emergence and effective exercise of the relevant legal order on the particular territory. MDA Freedman’s claims that the basic norm is a ‘very troublesome feature’ of Kelsen’s jurisprudential system and that in stable democracies such as the UK, basic norm is a needless reduplication.34 However, analytically, even definitionally, the basic norm cannot re-duplicate any norm of positive law even if it aspired to doing so, because it is not a rule of positive law itself, and is merely historical and analytical rationalisation of how the legal order came into existence and operates. Finnis suggests that the basic norm is an overly fictitious construct to suppress theoretical questions rather than to answer them. Finnis sees these questions as relating to the validity of the historically first and other previous constitutions. He suggests that the historically first constitution can be identi-

Raz, 143. Lloyd, 194. 34 MDA Freeman, Lloyd’s Introduction to Jurisprudence (2014), 258, 261. 32 33

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fied only if one assumes the theory of discontinuity and that a revolution necessarily makes a tabula rasa of the law of the constitution.35 That is, however, not what the pure theory sees the basic norm as. One constitution can replace another without the revolution in the sense of the pure theory. It is perfectly feasible that, even in situations of a major political change, a constitution is amended on the conditions it has itself provided for, and is then replaced by a new constitution. This is not the same as a constitution-changing revolution that would inaugurate a new constitution on the conditions not provided for under the previous constitution.

5.5

THE BASIC NORM’S ANALYTICAL ALTERNATIVES

The concept of the basic norm has been criticised from time to time, but other accounts as to the ultimate basis of legal systems are not more determinate or precise. If we focus on how other legal theories attempt to identify the ultimate basis of the legal system, it will become clear that those other theories have, if implicitly or subconsciously, acknowledged that there is analytical space and requirement for an extra-positivist, yet not ideological, rationalisation of the ultimate basis of the legal system. However, owing to their prevailingly positivist outlook, these theories could not adopt any natural law justification of the legal order. Yet they chose not to look past the positive legal arrangements of the relevant legal order to find such ultimate legal basis for it, as would be compatible with their positivist outlook. For instance, Salmond has suggested that: The constitution as a matter of fact is logically prior to the constitution as a matter of law. In other words constitutional practice is logically prior to constitutional law … No constitution, therefore, can have its source and basis in the law. It has of necessity an extra-legal origin, for there can be no talk of law, until some form of constitution has already obtained de facto establishment by way of actual usage and operation.36

Salmond’s way of tackling this, anticipating the need for extra-normative explanation of the rationalisation of the validity of legal orders: As an illustration of the proposition that every constitution has an extra-legal origin, we may take the United States of America. The original constituent states achieved their independence by way of rebellion against the lawful authority of the English J Finnis, Revolutions and Continuity of Law, in AWB Simpson (ed.), Oxford Essays in Jurisprudence (1973), 67. 36 J Salmond, Jurisprudence (6th edn, 1920), 108. 35

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Crown. Each of these communities thereupon established a constitution for itself, by way of popular consent expressed directly or through representatives. By virtue of what legal power or authority was this done? Before these constitutions were actually established, there was no law in these colonies save that of England, and it was not by the authority of this law, but in open and forcible defiance of it, that these colonial communities set up new States and new constitutions. Their origin was not merely extra-legal; it was illegal. Yet so soon as these constitutions succeeded in obtaining de facto establishment in the rebellious colonies, they received recognition as legally valid from the courts of those colonies. Constitutional law followed hard upon the heels of constitutional fact. Courts, legislatures, and law had alike their origin in the constitution, therefore the constitution could not derive its origin from them. So also with every constitution that is altered by way of illegal revolution.37

Salmond’s initial intuition is no doubt correct, but then he suggests a more generalised conclusion to the effect that: Constitutional law, therefore, is the judicial theory, reflection, or image of the constitution de facto, that is to say, of constitutional practice. Here, as elsewhere, law and fact may be more or less discordant. The constitution as seen by the eye of the law may not agree in all points with the objective reality. Much constitutional doctrine may be true in law but not in fact, or true in fact but not in law. Power may exist de jure but not de facto, or de facto but not de jure.38

Such assumption of the duality of the factual and the legal constitution seems to be a thesis put forward for the want of a better explanation for the ultimate validity of a legal order, and is somewhat anticipatory of the basic norm as part of the pure theory. But the bigger problem arising with this reasoning is that adopting the distinction between the positive law constitution and the so-called real constitution means that the total legal order in question neither forms a unity nor enjoys any efficacy. Instead, such legal order is seen to accept that the validity and binding force of its norms depends on their factual observance on the ground, which outcome would be absurd in itself. For, the whole point of distinguishing between the efficacy of the total legal order that secures its distinct identity and the observance of its particular prescriptions on the ground is to postulate that the obedience, compliance or observance of those prescriptions, or the use of coercion to enforce them, is the total legal order’s entitlement, not the condition of its ultimate validity. Salmond’s approach to the sovereignty of parliament admits the problem with the need to terminate the seemingly infinite normative regression, but leaves the matter open. Salmond suggests that the rule that acts of parliament

Salmond, 108–9. Salmond, 109.

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are binding ‘is the law because it is the law, and for no other reason that it is possible for the law itself to take notice of. No statute can confer this power upon Parliament, for this would be to assume and act on the very power that is to be conferred.’39 But how can a positivist account of law acknowledge a legal power as valid without enquiring into and confirming the process through which it has been conferred to the owner of that power? The main feature of Austin’s approach is that the sovereign and its habitual obedience is associated with a single entity that arguably is the basis of the system. Austin’s ultimate legal point was that, ‘in order that a given society may form a society political, habitual obedience must be rendered, by the generality or bulk of its members, to a determinate and common superior’.40 This is a rather relative criterion, providing only the indeterminate numerical requirement as to persons who obey the sovereign and the unspecified level of the intensity of obedience. Austin’s allusion to the ‘habitual obedience’ of the legislative sovereign prompts the query as to the basis in law of the authority of those who ought to be obeyed. As explained, the ruler must possess authority and obtain obedience on the basis of that, not on the basis of mere power, and demand obedience as of right.41 This requires understanding the actual or perceived legal basis on which the ruler would demand obedience to his laws and orders and, crucially, on what conditions. Austin’s habitual obedience of the sovereign is broad enough to encompass the State organs’ application of sovereign legislation; sovereign is obeyed if its prescriptions are executed and applied; if not then it is not habitually obeyed. Kelsen critiques Austin’s obedience in the sense that State organs apply the law precisely when an individual disobeys the law. Sanctions are stipulated for such cases too. The efficacy of law can thus mean both the obedience of it by its addressees, and its application by State organs.42 Moreover, even if the sovereign is not habitually obeyed in particular times and places, the legal order that entitles the sovereign to obedience and confers binding force to its laws still exists and it considers the sovereign to be enabled to legislate with binding force, and does not admit any other organ or entity to legislate on alternative grounds or terms or to obstruct the operation of the sovereign’s legislation. This outcome is secured through the duality and separateness of the constitution and basic norm to which the pure theory subscribes, unlike Austin’s theory which does not consider the constitution to be the law

41 42 39 40

Salmond, 124. J Austin, The Province of Jurisprudence Determined (1954), 59. M Oakeshott, Lectures on the History of Political Thought (2006), 293–4. GT, 61.

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properly so-called and therefore to determine the legal basis on which the sovereign legislator should be obeyed. Austin’s theory operates with the singular notion of ‘habitual obedience’ which aspires to answer questions which are, in the pure theory, addressed by the basic norm and the constitution. Owing to its sheer factual nature and the lack of its grounding in the constitution, the notion of ‘habitual obedience’ does not answer these questions. Hart’s thesis is that the rule of recognition is the ultimate rule of a legal system, serving as the criterion of validity of other legal rules and determination of the law-making authority.43 This way, a substantive rule of law determining the allocation of public authority to various State organs is seen to be the foundation of the entire legal system. By contrast, the basic norm is not a substantive rule of law; it does not describe the criteria of the validity of other legal rules, nor define the allocation of law-making authority within the relevant legal system. The basic norm merely substantiates the effective existence of a legal order on its own terms, whatever these terms are, and requires that such legal order should be obeyed on those very terms. The basic norm thus requires having an external look, as it were, at the statics and dynamics of a legal system, instead of getting into the detail as to what particular solutions that legal system proposes with regard to pertinent normative or constitutional matters. In addition, there is some element of circularity in Hart’s rule of recognition; it refers to what officials believe it to be; therefore Hart does not provide for an analytical method or guidance that could be used to clarify the ultimate basis of validity of the legal system within which those officials operate. The rule of recognition is quite useful in identifying the parameters of relationship between various branches of the UK government, but it is of limited importance in explaining the ultimate basis of the validity of the entire legal system (or total legal order). It is not clear either whether by articulating the rule of recognition Hart was advancing an original idea, as he seems not to have been without influence from American legal writers such as Karl Llewelyn to whose similar ideas he refers; Llewelyn had said law is what officials administering it believe it to be.44 But more fundamentally, is the officials’ practice normatively antecedent to the rule of recognition; how far are those who ‘practise’ bound by it? Can they modify its requirements? Officials may be practising but their practice does not create or constitute the process of framework within which they practise and which enables them to practise. Similarly, the practice of officials alone is not sufficient to confer to those officials the status or entitlement

HLA Hart, Concept of Law (1961), 105–6. HLA Hart, Essays on Jurisprudence and Philosophy (1983), 124.

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to practise accordingly. This is why the Hartian rule of recognition cannot amount to the efficacy or legitimacy of the total legal order. Officials can disagree about the legal position too. For instance, if a rule of recognition is applied to the context of judicial review, officials enacting secondary legislation may believe that they are authorised in law to do so, while the court reviewing that legislation reaches the opposite conclusion. In common law systems, the focus on the rule of recognition would therefore prioritise the role of courts, which have final word on what the law is. Thus some officials have the final word regarding the legality of other officials’ legally relevant activities. It is not officials who legitimise that position, but the constitution on the basis of which officials operate. The officials in question could not possibly have a common view about the ‘rule of recognition’ in such contexts. For, in the context of judicial review, the executive and judiciary stand on different grounds and are guided by different ideas: one by utilitarianism and party politics and the other by rule of law and individual freedom. They have their own views as to how the British constitution should preferably look and what kind of action and agenda it should enable and legitimise. To summarise, Salmond projects the duality of the constitution, formal and real, which the pure theory as a positivist theory cannot accept. Legal realists use extra-legal justification. Austin and Hart try to explain the system’s validity from within, and end up being circular. The pure theory’s basic norm is the most coherent explanation of the validity of legal systems, and the only one that captures the validity of the legal system in its totality. The pure theory’s Grundnorm has the advantage over its alternatives the way that, unlike Hart and legal realists, it does not require that the ultimate validity and legitimacy of the legal order is identified by reference to that legal order’s particular legal norms or the process of the application of that norm by officials. Identifying the ultimate basis from within does little to show how that legal system is grounded in the reality.

5.6

THE MEANING OF PRESUPPOSITION OF THE BASIC NORM

The presupposition of the basic norm means neither more nor less than the impossibility to trace it back to any recognised source of the existing positive law. For, the basic norm is itself the ultimate historical source of all positive law. It tells us how those sources of positive law came into being historically. In other words, there has to be the basic norm if there is the constitution, as the latter must have come into existence through some identifiable socio-historical process. Owing to the rejection of natural law or any other justification for the validity of any legal order, the pure theory cannot rationalise the basis on which

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positive law could be studied or understood, without first ascertaining that the total legal order which produces particular legal prescriptions is efficaciously established and operating. Quite simply, a legal order has to be there and operate in fact, before the positivist legal science could consider its prescriptions as binding law. One may query as to why we need to presuppose the basic norm to support the status of an actual and real constitution. For, is such constitution not real anyhow? But such query would put the cart before the horse. The analytical relevance of the basic norm and its reference to historically established and efficaciously operating legal orders is precisely to demonstrate that the current constitution is actual and real. For, the current constitution, written or unwritten, is merely a body of positive legal rules whose interpretation can give rise to disagreements. Whether the current constitution, on whichever template or analytical pattern it is being presented, is actual and real cannot be clarified unless and until it is ascertained that that particular constitutional pattern or template is actually one that is sustained by the operation of the efficacious total legal order. The presupposition process can consist in selecting a template or pattern of the allocation of constitutional authority and then tracing it back to a particular historical period where it is deemed to have been efficaciously established. Harris observes that the basic norm ‘is not a phenomenon at all, but a hypothesis’.45 It is a hypothesis insofar as related to social and historical facts and phenomena; a legal scientist presupposes them not as rules of positive law but as facts that have the distinct legal relevance in terms of conferring the validity to the total legal order. For, it is beyond the legal scientist’s analytical gift to examine and study these non-legal phenomena or place them on the same analytical footing as legal norms proper (among others owing to the fundamental distinction between fact and law). Hence the need arises to presuppose the legal relevance of those facts that lead to the establishment of the legal order. Every legal order has been established through some historical or social process, leading to the establishment of a political system, constitution and legal order. The pure theory does contain criteria, or hallmarks, or such phenomenon: effective control over the society by the authors of the constitution. The way of assumption of such control could vary, and include legitimate representation of society, or usurpation of authority. A legal order established through usurpation (conquest or revolution) is still a legal order, generating binding prescriptions and requiring obedience. Presupposition of the basic norm is thus not a simple assumption, or a presumption that could be rebutted, but the analytical necessity of reference Harris, CLJ (1971), 117.

45

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to facts, conditions or pre-conditions that are required and must be there or have displayed in the historical past to sustain the existence, operation and legitimacy of any legal order. This is about the presupposition of the inevitable or indispensable, a theoretical sine qua non to account for the factual reality of any legal system and justify treating it as an object of cognition of legal science. The necessary presupposition of a basic norm is required because without it no act of legislation or law-enforcement can be seen as a legal act. Kelsen explains that ‘[t]o interpret these acts of human beings as legal acts and their products as binding norms, and that means to interpret the empirical material which presents itself as law as such, is possible only on the condition that the basic norm is presupposed as a valid norm. The basic norm is only the necessary presupposition of any positivistic interpretation of the legal material.’46 Indeed, unless the basis of the validity of a legal order is identified first, it cannot be seen what bestows legal character upon the constitution, individual acts of legislation and law-enforcement undertaken under that legal order. ‘Only upon this presupposition are the declarations of those to whom the constitution confers norm-creating power binding norms.’47 This way it could be concluded that the arrangement subjectively intended as a constitution also objectively amounts to one. It has been rather aptly explained that ‘[t]his is the presupposition which is the reason for the validity of the legal order: whereas the general effectiveness of the legal order is the condition without which the presupposition cannot be made’.48 Goodhart proposes another, rather unfair, criticism that, ‘[b]y blandly suggesting that this basic norm must be “presupposed to be binding”, Kelsen avoids the most important problem in legal philosophy. It reminds one of the dreamer who goes into great detail about what he is going to do with a million pounds, but when asked where he is going to get his million pounds says that that is a practical question with which he is not concerned.’49 This criticism is inaccurate and unfair, because Kelsen has never avoided tackling the essence of the basic norm. Owing to the basic norm’s essential and qualitative difference from enacted positive law, the most one can do is presuppose the existence of the basic norm, because the source of its enactment does not exist. The fact that Kelsen requires presupposing the basic norms does not mean that the basic norm cannot be found and identified. However, it cannot be found and identified through the method that is used for identifying GT, 116. GT, 115. 48 FM Brookfield, The Courts, Kelsen, and the Rhodesian Revolution, 19 University of Toronto Law Journal (1969), 326, at 342. 49 A Goodhart, English Law and Moral Law (Hamlyn Lectures, 1953), 18. 46 47

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other legal norms and their sources; but it could well be identified through the socio-historical analysis that shows how the legal order came into being and acquired its efficacy. The need for a socio-historical approach is not exclusive to the identification of the basic norm, but also extends to the identification of constitutions antecedent to the pertinent legal system’s current constitution, including the historically first constitution. These previous and antecedent constitutions have no legal and normative force today; they are no longer sources of law; legally and normatively, they count for nothing in terms of proving and demonstrating that any source of law, any rule or enactment that subjectively purports to bind individuals on the basis that it operates as part of the total legal order also objectively forms part of it. These previous and antecedent constitutions merely provide the pure theory with historical points of reference in terms of how the current constitution has acquired its validity, indeed that the current constitution was adopted as part of the efficacious total legal order and that its adoption has replaced the previous constitution that has also operated as part of the same efficacious total legal order. Constitutions thus change, while the legal order remains the same, and the analytical and historical regression towards the historical point of the actual establishment of the total legal order and the provision of its historically first constitution is precisely what enables the identity of that legal order to be discerned and identified. In fact, the line of reasoning characteristic to Goodhart’s dreamer would be to be content with the existence of the legal system without querying from where it derives its ultimate validity and efficacy; a practising lawyer may at times afford to have such a position, but a legal theorist cannot.

5.7

EFFICACY OF THE LEGAL ORDER

The efficacy of the total legal order is a condition for validity of individual legal norms, but not the basis of their validity (conditio sine non but not conditio per quam). The source of validity of norms derives from constitutional procedures that the basic norm validates.50 By emphasising the requirement that a valid legal order must be one that is efficaciously established and functioning, the pure theory provides itself with an operational tool to approach, assess and analyse any legal order created in the world (ones that operate not in subordination to another legal order, thus any entity that claims to be a sovereign State). Efficacy, in a workable manner, merely means that there is one single legal order established in the society at the given point of time, in consequence of GT, 119.

50

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which fact it enjoys legal validity and its prescriptions bind citizens; and that there is no socio-political consensus to replace that legal order by another system, whether or not the prescriptions of that existing order are observed in any satisfactory manner. Kelsen’s thesis that ‘the validity of a legal order is dependent upon its agreement with reality, upon its “efficacy”’,51 means no more than that any legal system exists in a particular society that by and large accepts that the particular legal system is there (even if some individual norms are not effectively applied on the ground). The basic norm of the legal order produces the constitution that is in fact instituted and by and large effective (tatsächlich gesetzte, im grossen und ganzen wirksame Verfassung).52 The meaning of the ‘by and large’ efficacy could be debated. Wolfgang Friedmann has observed that: ‘How the minimum of effectiveness is to be measured Kelsen does not say, nor could he do so without going deep into questions of political and sociological reality.’53 Harris suggests that ‘[i]t would be impracticable to say, in the case of many norms, whether the sanction was applied more often than not when disobedience to the norm has occurred, because statistical evidence of the number of cases of disobedience could not be obtained’.54 Harris then suggests that the test should be that ‘a norm is to be judged effective if the official acts of application of sanctions bear a socially significant ratio to the recorded acts of disobedience’55 There has been a notable confusion by critics between the function of the basic norm as rationalising the efficacy of the entire legal system, and the effective obedience of legal prescriptions enacted on the basis of that basic norm. Goodhart has claimed that ‘[w]hat Kelsen fails to explain is how a legal order can be efficacious unless its subsidiary norms are obeyed, because a legal order can act only through subsidiary norms’.56 However, the pure theory requires that the distinction is drawn between the efficacy of the total legal order and the effective operation of or compliance with particular norms enacted as part of that legal order. Furthermore, the claim that ‘a legal order can act only through subsidiary norms’ would be a false claim if it equated

GT, 120. H Kelsen, Reine Rechtslehre (1934) (‘RR’), 219. 53 Friedmann, 278. 54 Harris, CLJ (1971), 121 (emphasis original). 55 Ibid., 122. 56 Hamlyn Lectures, 16, ‘subsidiary’ norms being statutes and precedents. JW Harris seems to similarly suggest that ‘[t]he grundnorm changes when the legal norms which are by and large effective within a territory change in such a way that a legal scientist can only interpret the content of these by and large as a logically consistent field of meaning by presupposing grundnorm’; Harris, CLJ (1971), 124. 51 52

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‘subsidiary norms’ to their obedience and enforcement, because the first function of a legal order is to produce those norms and endow them with the binding force. Those norms derive their validity from the law-making acts performed within the efficacious total legal order, not from the compliance with them on the ground. Goodhart’s claim goes beyond Austin’s thesis of ‘habitual obedience’ of sovereign commands, and requires, in a reverse manner, the obedience of ‘subsidiary’ rules to ground the status of the sovereign. It might as well be asked, then, how the sovereign is the sovereign if its commands are not always and invariably obeyed, or not obeyed at the level specified through a particular theoretical analysis. The ‘by and large’ thesis is not any less precise, or more imprecise, than Austin’s ‘habitual obedience’. ‘Habitual obedience’ relates to Sein, to what happens in fact, while the ‘by and large’ efficacy of a legal order is presupposed on the premise of the separation between Sein and Sollen. Precisely the requirement that the legal order must be by and large efficacious, not impeccably or invariably efficacious, mirrors the pure theory’s principal thesis that the validity of laws does not depend on their factual observance or enforcement. The legal order being by and large efficacious does not turn on the degree of actual obedience or enforcement of its commands and prescriptions. As long as an effectively established legal order remains in place and produces legal norms, it could be said to be by and large efficacious, independently of the degree of obedience or disobedience of its commands. Contextualising the ‘by and large’ efficacy implies the co-habitation of the legal order’s overall efficacy and some observable or even substantial degree of disobedience or lack of enforcement of its commands and prescriptions. The basic norm as the overall legitimating factor simply does not go to the effective application of the legal order’s individual prescriptions. Its function is merely to validate law-making on the basis of the actual and real constitution, i.e. production of rules that belong to the realm of the ‘Ought’ (Sollen), not any particular degree of compliance with or enforcement of individual legal prescriptions as are enacted on the basis of that constitution, which would belong to the realm of the ‘Is’ (Sein). Before it is about anything else, the basic norm is about the efficacy of the exercise of the law-making authority under the constitution that it validates. As long as that law-making authority is exercised, the legal order remains by and large efficacious on the basis of its own basic norm. The legal order has not been overthrown, it efficaciously remains in place. Police in a particular legal order may be inefficient in investigating theft or robbery and these occur with relative frequency and go frequently unpunished. Individual prescriptions that make theft and robbery can be said not to be effectively applied in that society. That does not go, however, to the efficacy of the entire legal order or question

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the basic norm of that order. The basic norm has validated the constitutional and law-making framework on the basis of which theft and robbery in the relevant society have been criminalised and their prosecution and punishment have been required. That does not go away merely owing to the actual lack of the efficiency of prosecutions. In this sense, being efficacious by and large appears to be a qualitative feature of a total legal order, not a quantitative measure of the obedience of its particular prescriptions on the ground. It could still be said that a legal order whose prescriptions are obeyed about 20 per cent of the time and disregarded on the ground and not enforced about 80 per cent of the time (owing to factors such as the inefficiency of law-enforcement agencies, corruption or fear of officials, or prosecutorial discretion) is still an efficaciously established and operating legal order, unless and until it is replaced by another, competing, legal order that is, in its turn, established efficaciously in the same time and space. Hart’s take on efficacy, emphasising the element of presupposing that the legal system is generally efficacious,57 essentially reiterates Kelsen’s much-repeated point but without acknowledging the authorship of this thesis. But Hart addresses the efficacy issue without considering the basic norm element, proposing to distinguish between the inefficacy of a particular rule and general disregard of the rules of the system. Such disregard: may be so complete in character and so protracted that we should say, in the case of a new system, that it had never established itself as the legal system of a given group, or, in the case of a once-established system, that it had ceased to be the legal system of the group … In such cases it would be generally pointless to assess the rights and duties of particular persons by reference to the primary rules of a system or to assess the validity of any of its rules by reference to its rules of recognition.58

This passage shows that Hart also, reluctantly or in passing, also admits that the validity of the total legal order must be sought in factors beyond his rules of recognition. On Hart’s account, rules of recognition remain in place and can be seen to rationalise the binding force of primary rules; the legal system continues to exist on its own terms; it is only that those rules are not factually obeyed on the ground. This account given by Hart is owed to the failure to factor the basic norm in the analysis. The emphasis the pure theory places on the basic norm is responsible for the limit of its focus to those factual occurrences adversely affecting the established legal system which have not merely the factual

Hart, Concept of Law, 104. Hart, Concept of Law, 103–4 (emphasis original).

57 58

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nature of disregarding or disobeying the legal system, but amount to actually nullifying that legal system and replacing it with another one. The concept of efficacy as part of the pure theory thus requires factoring in not any and every factual adversity that the established legal order faces, but only such normative, foundational and constitutional alteration of the existing reality as results in the abolition of one total legal order and its substitution by another one. The efficacy of a legal order is not about its factual effectiveness in a particular time or space; it is about its factual existence.

5.8

THE BASIC NORM OF THE UK LEGAL ORDER

The pure theory seems to require from a legal scientist to identify a plausible constitutional pattern and then apply it to underlying historical facts. Applying this approach to English law, the plausible model of an unwritten constitution would be about what ultimate law-making authorities are and what the balance is between them, while the basic norm would be about how historically that balance has been established. There is a considerable body of opinion that public authority rests upon opinion or belief as to how it is acquired.59 That is essentially a belief in constitutional rules, rationalising the efficacy of a legal order premised on those rules. Dicey has also observed that ‘the opinion of the governed is the real foundation of all government’.60 Harris also suggests that ‘the grundnorm of the United Kingdom legal system authorises the population at large from time to time to fashion the ultimate norms of the constitution in any way which meets with general approval’,61 and that therefore ‘[c]oercive acts ought to be applied only under the conditions and in the ways customarily recognised as constitutional from time to time by the population at large’.62 The emphasis on the population’s will or public opinion purports to introduce the social approval element, while the efficacy of a legal order on the basis of the basic norm ordinarily refers to the effectiveness of the legal system as opposed to its popular approval. Kelsen identifies the basic norm as the foundation of the legal order’s objective validity, regardless of the wishes of persons or groups of persons to which its commands and prescriptions are directed.63 Various contexts can also demonstrate that neither the element of popular approval, nor the element of forcible and coercive domination of the

Oakeshott, 294. AW Dicey, Law and Opinion in England (1926), 3. 61 Harris, CLJ (1971), 111. 62 Harris, CLJ (1971), 111. 63 H Kelsen, Allgemeine Staatslehre (Berlin, 1925) (‘AS’), 251; SLR, 1145. 59 60

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society by State authorities is worth being taken as the base criterion on its own. The normative basis in ancient Egypt for the Pharaoh’s rule may have been a supernatural belief in the nature of Pharaoh that entitled him to rule. Believing in this premise entails justification of his rule through particular – in this case religious – considerations. But the basic norm does not aim at justifying anyone’s rule; it merely demonstrates that while people in ancient Egypt believed in Pharaoh’s divine origin and accepted his authority as that of the core of the legal system, they accepted, with ensuing efficacy, the legal order thus derived and the validity of prescriptions that it contained. The pure theory itself would prefer to refer to the point of time in history manifesting the selection of, or the usurpation of power by, the first Pharaoh. Similarly, whether the society desires a particular legal order to be in place or whether it is forcibly subjected to it could only be clarified through complex sociological studies in empirical contexts. It is likely that the Third Reich would have enjoyed the acceptance of the contemporary German society for much longer after 1945, unless externally overthrown as it eventually was. It is also more likely than not that the German society was not going to change or overthrow that legal order, but there is no more certainty as to whether it actually could do that either then or at some later point of time. The Saudi Arabian legal order that monitors the cross-border movement of women cannot be certainly said to enjoy popular approval, but it can be explained and rationalised by the pure theory as a system which at this moment the Saudi Arabian society by and large efficaciously accepts and obeys, whether out of sympathy towards that legal order or out of lack of any means to change it. Therefore the use of the unitary and single concept of the efficacy of the legal order, as initially proposed by the pure theory, is far more coherent and productive analytically in illustrating the pertinent legal order’s basic norm than would be the attempts to disentangle the concept of efficacy into various elements that might illustrate the social or ideological approval of the legal order. The single and unitary concept of the efficacy goes to the legal order as such, not to particular means it uses to regulate human relations, be it the usurpation or the representation of public opinion. The establishment of kingship and royal authority in medieval Europe (for instance in France) took place through the use of the monarch’s actual power but crucially also in pursuance of his claim to a transcendent royal authority, which came to be believed and accepted as such, as authority that the King owned exclusively and which was unrivalled. The monarchy thus established became an effective form of government on the basis of that authority; by reverse token, if a King had lost part of his domain owing to a civil war or insurrection, there might have been a competing power on the relevant territory but no competing authority.

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Medieval belief as to the King’s authority was that it had to be acquired as opposed to being merely possessed or even to be inherited by virtue of primogeniture (this latter aspect was owed to the distinction between royal authority and that of the head of a family). Such acquisition of authority by the King was believed to take place through the divine conferral.64 In that sense, belief in the King’s divine authority was an important impetus in constructing political systems because, as Oakeshott explains, feudal vassals would not give to the King more power or authority than he already possessed. Especially in the aftermath of the Norman Conquest, kings in England gained a stronger authority than a feudal monarch would have. William the Conqueror was claiming the authority over the entire territory of England by virtue of his conquest of the latter. Lordships were abolished, and the King himself became the lord of the entire land. Feudalism obviously did not go away, but new feudal lords were King’s tenants and owed services to him.65 Therefore, claim to divine authority was a monarch’s claim to rule over and above the social forces on the basis other than the conferral by those forces. Thus, the status of the King generates the claim to the entire territory of the realm; not that the status of the King is constituted by vagaries of territorial control of particular territories within that realm. Consequently, the institution of monarchy should be seen not merely as an arrangement that inaugurates a particular form of government or constitution, but also one that puts the total legal order together. The assertion of monarchical authority over the entire realm was a normative claim purporting to enjoy primacy over factual challenges to authority, or factual inefficiency of the exercise of that authority on the given day; needed to counter territorial challengers if and when factual effectiveness as such would not rationalise royal supremacy, due to rebellion, invasion or other loss of control. The scope of monarchical entitlements was, thus, a manifestation of how national legal orders self-interpret their authority in terms of normative legal entitlement. To all intents and purposes, thus, the institution of monarchy in England has provided the English legal system with the constituent power – a power that establishes the constitution.66 The monarchy itself may have been a central element of such constitution in terms of governing the realm, but monarchy was also more than that: it was the socio-historical reality that produced and kept together the legal system in England, a total legal order. The UK’s historically first material constitution established post 1066 is the same as the UK’s current common law constitution. Its particular aspects may

Oakeshott, 267–8; in particular through anointing, ibid., 278. Oakeshott, 268, 281. 66 See further Ch. 4. 64 65

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have substantially evolved but its foundations as well as the sources of law it relies on have remained the same. The historically first constitution in England prescribed that all authority and lordship were derived from the King. In the UK, monarchy is at the roots of the constitutional system, and all branches of public authority function in the name of the monarch (much as under the constitution the monarch’s authority is not absolute and the monarchy functions within the law, not above the law). Then Kelsen alludes to the factor which can guide us in identifying constitutional patterns around which the English legal system has historically consolidated and acquired efficacy. Kelsen suggests that ‘[a] legal community which has an administration and courts is a State. … From a technical point of view it is very characteristic that a legislative organ is not an essential requisite of a State. It is the centralization of the judicial and administrative, not the lawmaking function, which makes a primitive community a State. The jurisdiction of State courts is older than State legislation.’ Furthermore, ‘the centralization of the law-applying function precedes the centralization of the law-creating function. Long before special legislative organs come into existence, courts are established to apply the law to concrete cases. The law, thus applied, is customary law, law created by a specific method.’67 The history of common law in England abundantly demonstrates that it was precisely this source of law around which the constitutional cohesion has been achieved in the historical perspective. As Holdsworth has observed, it was in the aftermath of the Norman Conquest ‘that it was settled that there should be a common law’.68 At the time of the Norman Conquest English law was not uniform or administered by a central court; there were instead laws of different origin applying to different localities and governed by various public as well as private (feudal), mutually competing, jurisdictions. The Norman Conquest brought to England a strong ruler whose power was felt throughout the country and who governed through a royal court. By and large, it was under Henry II that a centralised judicial system administering law throughout the entire country was consolidated, with the ultimate outcome of substituting one common law for the confused mass of local customs.69 Thus, ‘[b]efore the Norman Conquest there was no common speech, no common dress – no common law’.70

67 H Kelsen, Social Technique – The Law as a Special Technique, 9 University of Chicago LR (1941) (‘Social Technique’), 93, 95. 68 W Holdsworth, A History of English Law, vol. 2 (1924), 145. 69 Holdsworth, vol. 1, 3–5. 70 OK Metcalfe and J Westwood, General Principles of English Law (1962), 8 (emphasis original).

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The centralised judicial system emerged owing to the power of the Crown.71 Justice and the establishment of courts was the concern of the King throughout his entire realm, not of feudal lords.72 During the Tudor period these ancient courts did not undergo any fundamental changes. Their constitution was fixed by their antiquity.73 As Salmond further explains: From the earliest times the judges of the king’s courts have been a small and compact body of legal experts. They have worked together in harmony, imposing their own views of law and justice upon the whole realm, and establishing thereby a single homogeneous system of common law. Of this system they were the creators and authoritative interpreters, and they did their work with little interference either from local custom or from legislation.74

From the thirteenth century onwards, the rise of legislation coincided in time with the closer identification of common law with law administered by common law courts and courts controlled by them (as opposed to ecclesiastical courts and other courts of special jurisdiction). This way, the common law claimed independence from the King, and found its ally from the parliament through the establishment of the principle that common law can be changed only by parliament.75 This alliance between common law and parliament subsisted in the times of Sir Edward Coke.76 From the fact of being a royal court the consequence followed that the King had a large control over judicial business and at times actually decided cases. However by the fifteenth and sixteenth centuries, in times of Fortescue and Coke, this became unusual.77 Coke derived judicial independence from the historical facts of the King entrusting his judicial power to judges.78 And ‘it was quite contrary to the medieval idea of the supremacy of law – an idea strongly held by the judges of the common law courts – that the king should be able to interfere with its rules by the exercise of its personal discretion’.79 The process of separating the jurisdiction of royal courts, especially the King’s Bench, from the authority of the King, especially the court’s authority

Holdsworth, vol. 1, 1, 5. Oakeshott, 282. 73 JR Tanner, Tudor Constitutional Documents (1951), 342. 74 Salmond, 160. 75 Holdsworth, vol. 2, 310–11. 76 AL Rowse, The England of Elizabeth (1951), 376. 77 Holdsworth, vol. 1, 194, even though the King continued to enjoy smaller procedural advantages. 78 Ibid., 1, 207. 79 Ibid., 1, 207. 71 72

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derivable from its operation in the presence of the King, was gradual and not straightforward,80 evidencing that the very existence of the independent common law jurisdiction was historically consolidated owing to the effective royal authority. It is on these historical conditions that English law has become an efficacious legal system. Subsequent periods of constitutional history in England have witnessed the growth of parliamentary representation and democracy. The parliament has become the principal policy making organ in the legal system. At times, the sovereignty of parliament is portrayed as the Kelsenian Grundnorm of the UK legal system.81 However, the notion of parliamentary sovereignty is unsuitable for the role of the basic norm, because it is not a historical explanation tracing the origins of the system; nor is it the basis of all law-making in the UK. Instead, the rule of legislative supremacy is one of the rules that form part of the constitution sustained by the basic norm of the UK legal system. Lord Scarman has observed that ‘[w]hile, therefore, we must recognise that English law does today accept as beyond legal challenge the legislative sovereignty of Parliament, there is nothing in its tradition or heritage that makes such acceptance so basic that, if it be limited, the system would collapse’.82 This matches the pure theory’s approach that a basic norm of the legal system is whatever sustains the system in its entirety and without which the system would not exist or function. Thus, parliamentary sovereignty would not constitute the point at which the regression in search of the basis for public authority would stop. Nor the point at which the English legal system is constituted. The pure theory would treat legislative supremacy merely as one, even though very important, element of constitutional arrangements under positive law. A particular pattern of obedience of statutes is not carved in stone and courts may evolve their treatment of this principle.83 In doing so, they would be acting as agents of the one and same continuingly operating legal order. Parliament would continue functioning as part of the same legal system and constitution operating on terms determined by courts. The basic norm is broader than any actual or putative rule that may determine parliament’s status.

Ibid., 1, 206–7, 210–11. D Oliver, The Law of Parliament, in D Feldman (ed.), English Public Law (2009), 128. 82 L Scarman, English Law – The New Dimension (Hamlyn Lectures 1975), 17. 83 As Wade has suggested, ‘new generations of judges might come to accept that there had been a new constitutional settlement based on common consent and long usage, and that the old doctrine of sovereignty was ancient history’; Constitutional Fundamentals (Hamlyn Lectures 1980), 37. 80 81

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If parliament’s ‘sovereign’ legislative commands are habitually obeyed in the UK on the condition that their content is ascertained and their practical scope is set by courts, as discussed in the previous chapter, then the legal order that is efficaciously obeyed in the UK is one premised on the constitution that emphasises the dual supremacy of the parliament and of courts in terms of law-making activities. Moreover, Wade suggests that the rule as to the status and authority of parliament: is therefore a rule which is unique in being unchangeable by Parliament – it is changed by revolution, not by legislation; it lies in the keeping of the courts, and no Act of Parliament can take it from them. This is only another way of saying that it is always for the courts, in the last resort, to say what is a valid Act of Parliament; and that the decision of this question is not determined by any rule of law which can be laid down or altered by any authority outside the courts.84

This is essentially to endorse the thesis of dual supremacy in the area of law-making, shared between courts and the parliament. Along similar lines, Sedley LJ distinguishes between the Crown in Parliament and Crown in courts, reflecting the ancient origin of both branches of authority, by fiction connected historically to the Crown.85 Similarly, Laws LJ described the High Court’s jurisdiction as so original, general, unlimited, very high, and transcendent,86 that it is neither derived from nor is dependent on any other constitutional authority. Thus, the common law jurisdiction of courts fully fits within the parameters of the Grundnorm of English law – the long-standing, independent and foundational role of common law courts that owe neither their status nor their interpretation and review powers to legislative will. Consequently, the version of the UK legal order’s basic norm suggested by Harris appears rather plausible: In the United Kingdom there are at least two norms which authorise the creation of general norms. These are, giving them the form stipulated by Kelsen: (i) coercive acts ought to be applied in accordance with statutes enacted by the Queen in Parliament; (ii) coercive acts ought to be applied in accordance with judge-made rules established in conformity to the doctrine of binding precedent. If these norms and those whose creation is authorised by them are to be treated as a unified field of meaning, a grundnorm has to be presupposed which authorises their creation.87

HRW Wade, The Basis of Legal Sovereignty, CLJ (1955), 189. Sir Stephen Sedley, ‘Human Rights: A Twenty-first Century Agenda’ Public Law (1995), 389. 86 Cart [2010] WLR 1012, paras 44–51. 87 Harris, CLJ (1971), 103, at 109. 84 85

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This by and large means that a legal order as created in the aftermath of the 1066 Norman Conquest, with subsequent developments or modifications, ought to be obeyed and can be upheld by coercion from the State. The legislature-centred pattern of the constitution under which the sovereign parliament is omnipotent to enact any law it pleases has not been historically upheld by the efficacy of the legal system (or total legal order) and is thus hardly suited to be a plausible candidate for the basic norm of the UK legal order. The pattern of the constitution under which the royal courts deriving their authority directly from the common law are authorised to determine the meaning of any law, including parliament’s enactments has, however, been upheld by the efficacy of the total legal order over centuries and thus corresponds to the basic norm of the UK legal order.

5.9

CHANGE OF THE BASIC NORM

It is the case with every legal order that it has been established at some point of time back in history and continued operating since. Legal (as well as political) systems face multiple challenges, such as disobedience, rebellion, inefficiency, corruption, but none of these amounts to the abolition of a legal order. A legal order continues existing and operating until and unless it is replaced by a competing legal order. A deficient, inefficient, or challenged legal order is still a legal order. It is precisely this factor that emphasises the key analytical relevance of the basic norm in terms of understanding stable legal systems, challenged legal systems (for instance ones facing civil war) and overthrown and replaced legal systems alike. The legal scientist, judge or other observer needs reliable guidance to see whether there has been a revolution and change of the basic norm; or not and the old order continues. The change of the basic norm is a qualitative phenomenon. It requires no specified historical consolidation period, and the instantaneous change of government brings about the same result across the board of the legal system as does the centuries-old consolidation of a legal system. Then, ‘[i]t is equally irrelevant whether the replacement is effected through a movement emanating from the mass of the people, or through action from those in government positions. From a juristic point of view, the decisive criterion of a revolution is that the order in force is overthrown and replaced by a new order in a way which the former had not itself anticipated.’88 Harris suggests that ‘[t]he test need be no more precise in order to choose between the effectiveness of competing norms issued by rival legislative GT, 118.

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authorities. In the revolution cases it was manifestly possible to predict, at the relevant dates, that official acts of sanction would occur in accordance with revolutionary norms, and that these official acts would be in a socially significant ratio to acts of disobedience to the norm.’89 However, revolution is seen by the pure theory as totally substituting the basic norm of one legal order by that of another legal order, as opposed to the establishment of a rival authority on the territory over which the antecedent legal order has extended. The maintenance in force or replacement of individual legal norms is merely an incidence of that replacement of a total legal order, in essence depending on the new legal order’s discretion. The pure theory does not require the legal scientist to postulate or presuppose a new basic norm merely by reference to what happens to particular legal norms. Up to such point as the revolution replaces one legal order by another, the basic distinction between the efficacy of the relevant legal order and effective application of individual legal prescriptions enacted on the basis of it needs to be maintained. The factual effectiveness of competing authorities is difficult to measure; a straightforward requirement could, instead, be that there is no competing legal order established. If so, then one must apply the same threshold of proof to the newer system having successfully consolidated and abolished the older one. The end of the old legal order’s efficacy can be manifested only through its replacement by the new legal order’s efficacy. The need to distinguish between efficacious original establishment of a legal order and its contemporary effectiveness is also obvious because the pure theory proposes historical regression towards the historically first constitution through which the legal order was first established. The pure theory cannot be interpreted as warranting the assumption of the change of the basic norm on the basis of anything less than the nullification of the existing legal order and introduction of a new legal order to replace it. This way, efficacy of a legal order differs from efficacy of operation of individual norms; but then, such efficacy is connected more with the law’s regulatory quality than with sanctions and effective application. If a legal order that has been efficaciously established and has been so functioning for a long time faces the challenge from revolutionary (rebel, secessionist or other) authorities, it still needs to be ascertained whether that challenge is directed against the efficacy of that total legal order in the first place and aims not merely to establish a different legal order in the territory in which the original legal order applies but also one replacing it. When the disruption, as opposed to destruction, of the legal order takes place, courts may have to deal with the issue of whether and to what extent the entitlements and authority of the antecedent constitutional authorities subsist. Harris, CLJ (1971), 122.

89

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A secessionist claim relates merely to the part of the territory covered by the original legal order; it does not inherently challenge the validity and efficacy of the original legal order. In such cases, when the original legal order remains in place and is not overthrown, it cannot be concluded that the actual revolution amounting to the change of the basic norm has in fact taken place. Both analytically and jurisprudentially the two situations remain different and there is no analytical necessity that secession cases ought to be treated the same way as revolution cases proper which lead to the replacement of one legal order by another. Secession cases do not affect the basic norm of the legal order from which secession is being sought or attempted, because that legal order is anyway valid regardless of the gap or contrast between the content of its legal rules and compliance with those rules on the ground (which is one of the main theses of the pure theory). The total legal order’s basic norm is not affected by a claim generated on the basis of effective control of some part of the State’s territory, any more than the UK’s basic norm would be affected by Blackpool’s declaration of independence in response to the UK’s putative ban on knotted handkerchiefs. Various such situations differ only in degree, and none of them affects the basic norm of the State’s legal system or makes the total legal order any less efficacious. Whether one order is replaced by another could not be the same when a territory breaks away from the mother-State, whether successfully or not, without being constitutionally authorised to do so. This runs, in its turn, into the broader issue of whether the relationship between effectiveness and legitimacy is always one between irreconcilable alternatives, or whether in some cases the efficacy of an established legal order supports the claim of its legitimacy as well. Harris is correct that ‘efficacy alone will clearly not answer the question: which grundnorm ought the legal scientist to presuppose?’90 But the query no less pressing is whether this question has to be answered by reference to self-interpretation by either of the competing legal orders as to their territorial scope, or by reference to some analytically coherent method of jurisprudence. Under what exact circumstances can we say that pre-existing legal rules and authorities no longer continue under the old constitution but operate under the new one brought in after revolution has allegedly taken place? This matter arose with regard to the Rhodesian Unilateral Declaration of Independence, involving the legitimacy claim of the UK and the effectiveness claim of de facto authorities in Southern Rhodesia. According to the 1965 Rhodesia Act, Southern Rhodesia continued to be part of Britain and ‘the Government and Parliament of the United Kingdom have responsibility and jurisdiction as Harris, CLJ (1971), 121–22.

90

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heretofore for and in respect of it’. The Southern Rhodesia (Constitution) Order, 1965, provided that ‘any instrument made or other act done in purported promulgation of any constitution for Southern Rhodesia except as authorised by Act of Parliament is void and of no effect’. The Rhodesian court considered that it was ‘free to reach its own decision on whether or not the Government of this country is the only effective Government and hence the “de facto Government”’.91 The Rhodesian judiciary was clear that ‘[i]f in the instant case the stage is reached when it can be said with reasonable certainty that the revolution has succeeded, then in the eyes of international law Rhodesia will have become a de jure independent sovereign state, its “Grundnorm” will have changed and its new constitution will have become the lawful constitution’.92 On this view the UK would be bound to acknowledge that Southern Rhodesia has become an independent State. The UK House of Lords decision in Madzimbamuto is premised on the principle that, if a court is an organ of a particular legal order that is being challenged or even displaced, it cannot validly engage in examining ‘the status of a new regime which has usurped power and acquired control of that territory’.93 Furthermore, the Rhodesian judiciary was of the opinion that: The British Parliament may enact legislation for this country – I shall assume that promulgation within this territory of British Acts of Parliament is unnecessary – but in regard to any subsidiary legislation of the British Government purporting to deal with the ordinary day-to-day government of this country (which, as far as I am aware, has not yet been forthcoming), lack of promulgation within Rhodesia might well prove fatal to its validity. Promulgation is not necessary under English law, but it is essential to the validity of legislation under the Roman Dutch law which is the common law of this country … Apart from the question of promulgation, the important point is that any such British laws, whether promulgated or not, would lack efficacy within the territory because the factual situation is that no one in this country, in the present state of affairs, could be prosecuted and punished for disobeying them.94

Thus the court has identified that, for the time being, UK laws would not be effectively enforced in the territory of Rhodesia. This position projects the issue of regime change as one occurring locally but capable of being judged externally; in each case external judgement could rely on factual effectiveness of a new regime as well as its legality. On that basis Pakistani and Ugandan judgments, involving the replacement of the

93 94 91 92

Madzimbamuto, High Court, 9 September 1966, 33. Madzimbamuto, Appellate Division, 29 January 1968, 33. Madzimbamuto [1969] 1 AC 645, at 723–24. General Division of the High Court, 9 September 1968, 33–4.

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constitution of the total legal order in the relevant jurisdictions,95 were correctly distinguished. There was, first, the empirical basis for doing so because English courts in Madzimbamuto only dealt with the attempted secession rather than the takeover of the entire legal order. Also, Pakistani and Ugandan courts placed themselves outside the existing constitutional chain from which they initially had exclusively derived their authority. The Rhodesian court has further suggested that Pakistani and Ugandan authorities validated the thesis that: success alone is the determining factor. It is argued, however, that these authorities only apply to countries which were already fully independent states before the revolution occurred. There is, however, no principle which supports this argument. The American War of Independence is sufficient proof of that.96

The court has thus claimed that Kelsen’s approach would apply to secession and revolution cases alike. The Rhodesian court thus relied on the American War of Independence, without querying why Kelsen had not used it as an example substantiating his own theory of the efficacy of legal orders. For, it would have been a prime example to be used had the pure theory meant to factor secession cases into the equation of the efficacy of the total legal order. Kelsen’s own take on this is the following: Suppose that a group of individuals attempt to seize power by force, in order to remove the legitimate government in a hitherto monarchic State, and to introduce a republican form of government. If they succeed, if the old order ceases, and the new order begins to be efficacious, because the individuals whose behaviour the new order regulates actually behave, by and large, in conformity with the new order, then this order is considered as a valid order.97

The distinction between Sein and Sollen is maintained intact, as ‘[i]t is now according to this new order that the actual behaviour of individuals is interpreted as legal or illegal. But this means that a new basic norm is pre-supposed.’98 The behaviour of people does not change the legal order; instead the legal order was changed first, new law-making authority emerged and consequently people begin to obey it. It is clear that Kelsen speaks here of the change of government and constitution within a State, not about the reduction of the territorial remit of the

Uganda v Commissioner of Prisons, Ex parte Matovu [1966] EA 514; The State v Dosso [1958] 2 PSCR 180. 96 General Division of the High Court, 9 September 1968, 37. 97 GT, 118. 98 GT, 118. 95

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authority of a legal system and government which survives and remains in place (as the UK government had done in the Rhodesia case). Cases where the old legal order is overthrown are different from those in which the old legal order survives. The abolition of a constitution is not the same as its disregard or disobedience within the particular territory. Another passage from Kelsen cited by the Rhodesian court suggests that ‘a national legal order begins to be valid as soon as it has become on the whole efficacious; and it ceases to be valid as soon as it loses this efficacy. The legal order remains the same as long as its territorial sphere of validity remains essentially the same.’99 On this position, the UK legal order retained its own efficacy and its basic norm was not affected by the ‘revolution’ that led to the establishment of de facto authorities in Rhodesia and their unilateral declaration of independence. What this passage of Kelsen suggests is that the UK government itself had to be overthrown for a revolution leading to the replacement of the basic norm of the UK legal order to happen. Kelsen’s approach is thus somewhat restrictive as it takes a total view of change of constitution and legal order by revolution. The 1961 Constitution of Southern Rhodesia had not been created on the basis of a discrete Rhodesian basic norm. Instead it was promulgated by British authorities for what was part of their own State territory. It was not a constitution of a State or of a separate legal order in the first place. Its replacement by the 1965 Constitution could not, likewise, affect any legal order’s basic norm because no such basic norm had been visualised through the adoption of the 1961 constitution. The adoption of the 1965 Constitution in Rhodesia was, thus, aimed at the wrong target. On terms of the pure theory, there was in Rhodesia no revolution of the kind that replaces one legal order by another. The House of Lords has distinguished Rhodesia from territories that fall within the scope of legislation such as the Westminster Statute and have thus effectively become independent.100 Rhodesia, according to Lord Reid, was part of the entire UK legal order under the sovereignty of the Queen in Parliament.101 This was, therefore, a situation where the integrity of State territory was threatened through its dismemberment but the efficacy of the entire legal system was not in principle prejudiced. The House of Lords has reasoned that: If the legitimate Government had been driven out but was trying to regain control it would be impossible to hold that the usurper who is in control is the lawful ruler,

GT, 120. Madzimbamuto [1969] 1 AC 645, 722. 101 Madzimbamuto, 722. 99

100

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because that would mean that by striving to assert its lawful right the ousted legitimate Government was opposing the lawful ruler.

The House of Lords also emphasised that ‘[t]he British Government acting for the lawful Sovereign is taking steps to regain control and it is impossible to predict with certainty whether or not it will succeed’.102 Much as factually it was not very effective at that point, the British Government’s legal position was not thereby prejudiced. Rhodesian judges were also aware that the UK government was trying to regain control over Rhodesia. But for them it was the actual and contemporary control over the territory that mattered. Lord Reid has observed that ‘[b]oth the judges in the General Division and the majority in the Appellate Division rightly still regard the “revolution” as illegal and consider themselves sitting as courts of the lawful Sovereign and not under the revolutionary Constitution of 1965. Their Lordships are therefore of opinion that the usurping Government now in control of Southern Rhodesia cannot be regarded as a lawful government’. The case of Adams v Adams goes even further than the above. Macaulay J of the High Court of Rhodesia, who granted the divorce in the case, was not seen to be properly appointed by the Governor of Rhodesia under the 1961/1964 Constitution; despite the fact that by then the Rhodesian judiciary regarded the 1965 Constitution as in force and the judge was appointed under it. Following the effect of the 1965 Order in Council, Sir Jocelyn Simon rejected the argument that Macaulay J was properly appointed and refused to recognise the decree granted by him.103 The priority for the legitimacy of the order over the usurper was stated in strict terms: no general principle depending upon ‘necessity,’ or an implied mandate from the lawful Sovereign which recognised the need to preserve law and order within the territory controlled by a usurper, could override the legal right of the Parliament of the United Kingdom to make laws for such a territory.104

Furthermore, ‘it would be a constitutional anomaly for our courts to recognise the validity of the acts of Macaulay J. as a de facto judge while the executive acts of those appointing him (which must include his very appointment) are refused recognition de facto by the executive here’. For, ‘since the 1961/64 Constitution is the only legal constitution, the courts in Rhodesia are by their own assertion not sitting legally at all; so that their judgments are not entitled to recognition’ ‘A mere declaration by a judge that he is not sitting under the

Madzimbamuto, 725. Adams v Adams (AG Intervening) [1971] P 188, at 208 (per Sir Jocelyn Simon). 104 Adams, 210. 102 103

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1961/64 Constitution’ was irrelevant and could not substitute the chain of normative hierarchy. The same approach was reiterated by the majority In re James, with Lord Denning dissenting.105 The change of the basic norm relates to the identity and existence of the legal order, to the fact that it by and large effectively operates, not to any requirement that it should be invariably obeyed in all parts of the relevant State’s territory. The pure theory deduces the basic norm from the historically first constitution, thereby requiring that only developments as major as the replacement of one constitution by another possess the macro-dimension that enables them to get to the basic norm. Efficacy as the condition of validity of the total legal order has to be about such identity of the legal order, rather than subject-matter or spatial limits of it, because otherwise that would project an insoluble contradiction in the pure theory, which does not see the lack of the effectiveness of particular norms short of overthrowing the existing legal order (e.g. widespread crime, gang rule, rebellion) as affecting the validity of the basic norm; even if the validity of the legal order on the part of its territory is contested, its identity is not so contested. In the 1990s the international community did not regard Somalia as having lost its statehood, much as it was widely regarded as a ‘failed State’. The break-down of law and order has even caused international intervention, but at no stage has there been an international consensus that Somalia had lost its statehood, or that its territory was up for grabs, or the secessionist entities claiming statehood on the Somali territory had to be recognised as States; or even that a new legal order emerged in the whole or parts of Somalia. It would be similarly implausible to suggest that current Somali authorities cannot, for that reason, prosecute murder, theft or robbery committed during that anarchy in breach of law that was no longer effectively operating.

5.10

EFFICACY AND REVOLUTION

Efficacy of the legal order seems to be an antecedent premise for the unity of law. There has to be one legal order or another in the relevant time and space, and the one that is there must constitute a unity. In a way fully compatible with the pure theory, the House of Lords has observed that ‘it is not possible to decide that there are two lawful governments at the same time while each is seeking to prevail over the other’.106

In re James (An Insolvent) [1977] 1 Ch 41. Madzimbamuto, 724.

105 106

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As Ihering has observed, revolution desires a new order to replace an existing one.107 According to Kelsen, revolution occurs ‘when the legal order of a community is nullified and replaced by a new order in an illegitimate way’. And ‘the decisive criterion of a revolution is that the order in force is overthrown and replaced by a new order in a way which the former had not itself anticipated’.108 And, rather pertinently with regard to the UK’s legal system, Kelsen observes that ‘[i]f the constitution is customary to begin with, grundnorm will only occur if a written constitution is substituted’.109 The attempt of Finnis to define a ‘revolution’ also demonstrates that the threshold is quite high for constitutional changes to be caught by the underlying requirement of the change of the identity of the legal system. This has to involve the change of rules as to rule-making or the replacement of the identity of a legal system.110 Thus it cannot be plausibly said that the efficacy of the legal order is nullified anytime when the usurpation of public authority takes place. Raz correctly suggests that ‘most countries absorb breaches in constitutional continuity without much effect on their identity’.111 This is not something to which Kelsen’s pure theory would object. Constitutional breaches short of the replacement of the basic norm can be very well accommodated within the continuance of the same basic norm. So, in that sense constitutional continuity does not go to the identity of the legal system. As such, however, ‘constitutional continuity’ is a rather vague and open-ended notion that can relate to the total replacement of a constitution and some individual breaches of that constitution. It is not obvious at all that Kelsen’s pure theory endorses such multi-faceted notions in such a blanket manner, let alone as one of the central elements of this theory. The pure theory admits the change in the identity of the legal system only if the entire constitution, not just its particular arrangements, is replaced through revolution or coup. There can be situations where a coup happens claiming the takeover of constitutional authority over the entire legal system and there can be constitutional disruptions or alterations that do not, on their face, reveal the intention of replacing one legal system by another. The pure theory is interested in a discrete notion of ‘constitutional continuity’ – which means either the continuity of one single constitution since the moment of its adoption, or of the sequential continuity of multiple constitutions provided that one is abrogated and the other is adopted through the legitimate exercise of the authority of the constitution-making organ that has produced the earlier of the two – in a different manner, and only in order R von Ihering, Law as a Means to an End (1913), 235. GT, 117. 109 Harris, CLJ (1971), 118. 110 Finnis, 50–1. 111 J Raz, Between Authority and Interpretation (2009), 58. 107 108

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to track the legal system’s basic norm. The usurping government is one that effectively replaces the constitution, not one that usurps the office foreseen under the existing constitution and thus tries to insert itself into the structure of that very constitution. In relation to the change of the basic norm illustrated by the example of systems with written constitutions,112 the model seems to be more or less straightforward because the abolition through coup of the written constitution has an across-the-board impact, as it purports to affect the foundations of the entire legal system. When some elements of the old constitutional system continue after the coup, presumably the basis for that is in the will and grace of the new government and regime. On the other hand, if authors of the coup have suspended the written constitution, it is not impossible that the courts that operate directly under that constitution may still pass the judgement as to the validity of that suspension or abrogation. But then, the pure theory would suggest that with the abolition of the constitution the role of courts which was specified under that constitution is also terminated. If a coup abolishes the constitution courts must show that they have been abolished and then re-established on the identifiable legal basis to justify their authority to adjudicate in the first place and then to validate the new regime. As Eekelaar has observed, the fears and sympathies of judges could also influence their position.113 Thus, it may be queried in particular cases whether judges merely accept the constitutional change that happened independently of them, or play their own part in consolidating the legal status of usurpers or revolutionary authorities and transferring to them the legitimacy from the pre-existing authorities. However, with an unwritten constitution, such revolutions are unlikely to change the constitution unless the authors of the revolution also author the new, typically written, constitution to replace the antecedent unwritten one. Wade’s account of constitutional developments in England highlights a few situations in which the legitimacy of the existing constitution might be seen to have been disrupted: When Charles I was executed in 1649 the courts continued to enforce the Acts of the Long Parliament, the Rump, Barebones’ Parliament, and the other Commonwealth legislatures. For a revolution took place, and the courts (without any authority from the previous sovereign legislature) spontaneously transferred their allegiance from the King in Parliament to the kingless Parliaments. In other words, the courts altered their definition of ‘an Act of Parliament’ and recognised that the seat of sovereignty had shifted. This was a political fact from which legal consequences flowed. But in 1660 there was a counterrevolution. Charles II was restored, and it was suddenly GT, 118. J Eekelaar, Rhodesia: The Abdication of Constitutionalism, MLR (1969), 1, at 23, 42. 112 113

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discovered that all Acts passed by the Commonwealth Parliaments were void for want of the royal assent. The courts, again without any prior authority, shifted their allegiance back to the King in Parliament, and all the Commonwealth legislation was expunged from the statute book. The ‘glorious revolution’ of 1688 was, in its legal aspect if in no other, much like the revolution of 1649, for the courts, recognising political realities but without any legal justification, transferred their obedience from James II to William and Mary.114

These seventeenth and eighteenth century events may have been political revolutions with far-reaching implications for the political system. It may also be factually correct that courts continued operating throughout regardless of these political and constitutional changes, rather than ‘spontaneously’ moving from one constitutional space into another. Wade’s observation regarding the above events is that the ‘“ultimate legal principle” [which determines the status and authority of parliament] is therefore a rule which is unique in being unchangeable by Parliament – it is changed by revolution, not by legislation; it lies in the keeping of the courts, and no Act of Parliament can take it from them’.115 On its face, this reasoning is perfectly compatible with the pure theory’s approach that the basic norm is changed only through revolutions. But is the revolution Wade here speaks of qualitatively similar or comparable to those ‘revolutions’ that changed the elements of parliament and monarchy? It seems that there are two kinds of ‘revolutions’ spoken of here: one that leads to the change in the structure of parliament or replacement of one monarch or royal dynasty by another; and another that involves the change of the ‘ultimate legal rule’ that enables courts to determine what the status of parliament is in the relevant circumstances. The use of the pure theory’s methodology can expose some circularity in Wade’s reasoning. According to one possible account, the basic norm changed with all those political revolutions and courts have effectively become operational under the new order (comparably to Pakistan and Uganda cases). The key factor is, however, whether these ‘revolutions’ involved a replacement of one constitution by another, as opposed to the change of its particular elements related to the identity of the monarch or structure of the parliament. It may be said that under the risk of dismissal or worse, judges transferred their loyalty from the old constitution to the new; but then the ‘ultimate legal rule’ would have to change to lead to the change of the constitution, and it is precisely here that this first account appears to be empirically counter-factual. In various jurisdictions, judges can be at risk for multiple reasons, not each and every one

Wade, CLJ (1955), 188–9 (emphasis original). Wade, CLJ (1955), 189.

114 115

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of which needs to be associated with the replacement of the constitution, basic norm or an ‘ultimate legal principle’. Another account could be that courts, and the common law system they run, remained the same and retained the same constitutional status throughout. The ‘ultimate legal principle’ operated by courts remained the same and the constitutional status of successive parliaments was owed to the recognition by the judiciary that operated under one and the same common law constitution. As long as the above ‘ultimate legal rule’ remained ‘in the keeping of the courts’, the English legal system remained the same throughout. The legal order was not overthrown through the means it had not itself anticipated. Factoring the transcendence of common law judicial jurisdiction into the basic norm and efficacy of the legal order makes even more sense from the historical perspective that reveals that ‘revolutionary’ or related events did not generally affect the ordinary functioning of the English legal system.116 Kelsen’s key point is that, in the case of revolution, between the old and new constitution ‘continuity holds neither from the point of view of one nor from that of another’.117 This also indicates that the revolutionary government’s acts are not cognisable under the constitution after the coup regime ends; thus the efficacy of the revolution regime has little legal meaning and import in the sense that it authorises legislation and coercion only as long as the revolution regime in fact lasts; it does not confer any distinct legitimacy or legal force to the coup acts after the revolutionary regime’s demise; for, every legal order has its own discrete identity, and post-revolutionary authorities are under no duty to recognise revolutionary authorities’ laws any more than the latter was obliged to recognise pre-revolutionary authorities’ laws. The qualitative analytical distinction between the basic norm and all other legal norms is one of the major strengths of the pure theory in the sense that it enables, indeed requires, not to presume, too early and too soon, the replacement of one legal order by another; especially when certain substantive rules, including ones of constitutional character, are abrogated in an unconstitutional manner. The basic norm of the legal order changes with revolution that involves the change of the constitution, not necessarily with the usurpation of the constitutionally determined authority or with the change of any particular aspect of the constitution. In such situations, one should focus on the intentions of the usurpers, and whether they wish to be acting within the pre-existing constitution; and the relationship between their intention and the relevant provisions of the constitu-

‘England’s legal system was left largely untouched by events at Westminster’; D Scott, Leviathan: The Rise of Britain as a World Power (2013), 187. 117 GT, 118. 116

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tion. In addition, events to which one may attempt attributing the character of revolution may be a mere violation of the existing constitution, or a response to a previous violation (it all depends whether these events can be accommodated within the terms of the constitution; whether the authors of a ‘coup’ attempt substantially altering the terms of the existing constitution and the balance of powers allocated under it). Then, the intention of officials from a pre-existing legal system is also relevant, because judges might as well be administering regular justice on the assumption that they are part of the old legal order regardless of what happens at the top of the government. The events of the Glorious Revolution 1688 have been discussed through the prism of the basic norm and constitutional continuity. As Salmond queried: ‘By what legal authority was the Bill of Rights passed, and by what legal title did William III assume the Crown? Yet the Bill of Rights is now good law, and the successors of King William have held the Crown by valid titles.’118 Hartley suggests that ‘William and Mary were not King and Queen unless and until the Bill of Rights was valid law, and the Bill of Rights was not valid law unless and until the Sovereign had consented to it. James II did not consent to it.’ Hartley continues that ‘[i]t is only by postulating a change of Grundnorm that this consequence can be avoided, a conclusion that is legitimate since it reflects the actual power relationships in England at the time: William and Mary were able to rule successfully, while James II never succeeded in regaining the throne’.119 Kelsen has not expressly pronounced on this particular situation. If, as Finnis suggests, the monarch’s abdication does not prejudice the institution of monarchy, and if English law historically dealt with abdication and demise of the monarch alike,120 then, quite simply, according to English law, such abdication will not count as a coup d’etat of the kind to which Kelsen attributes the effect of revolutions that destroy existing legal systems. For, if English law has historically followed the doctrine of the monarch’s dual nature, then the coherent application to that of the requirements of the pure theory will not require characterising it as a coup. A usurper does not have to be regarded as an author of the revolution. James II threw the Great Seal into the Thames, and he did not want to continue his role as part of the existing constitutional framework; if parliament saw abdication in this, then there was no change in England’s basic norm and the old order simply continued with (and after) the choice of the new monarch. Parliament merely acted within the existing constitution.

Salmond, 109. T Hartley, International Law and the Law of the European Union – A Reassessment, BYIL (2003), 5. 120 Finnis, 47. 118 119

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Blackstone has viewed this process as part of constitutional dynamics, not of revolution. When King James the Second invaded the fundamental constitution of the realm, the convention declared an abdication, whereby the throne was rendered vacant, which induced a new settlement of the crown … If, therefore, any future prince should endeavour to subvert the constitution by breaking the original contract between king and people, should violate the fundamental laws, and should withdraw himself out of the kingdom; we are now authorized to declare that this conjunction of circumstances would amount to an abdication, and the throne would be thereby vacant.121

Blackstone did not treat such events as revolution or a replacement of constitution. The monarch’s abdication places far less strain upon the legal system when, as has ordinarily been the case in England, the ensuing ‘coup’ shows no intention to displace the authority of other constitutional institutions, than is the case with revolutions properly so-called or dictatorship when the new government openly suspends or abrogates the existing constitution and dissolves existing constitutional authorities. It is unclear how a monarch’s abdication would amount to a situation in which ‘the order in force is overthrown and replaced by a new order in a way which the former had not itself anticipated’, as put in Kelsen’s own words. Overall, there was no intention in 1688 to discontinue the old constitution and replace it with a new one or to change the identity of the English legal system. Instead there was a need to enthrone a new monarch as part of the same continuing legal order. Parliament was loyal and faithful to the existing legal order and constitution, and so were William and Mary as newly enthroned monarchs. In fact their enthronement was a step towards remedying that breach of the constitution. Change of dynasty is not the same as change of monarchical constitution, let alone of the basic norm. These processes go to particular substantive rules of constitutional law, not the efficacy of the entire legal system. Under the conditions of the written constitution, it would be more difficult, if possible at all, to implant into the constitution the status of an organ whose authority is not recognised by the constitution’s text. In the conditions of an unwritten constitution, however, such difficulties are not insurmountable because the unwritten constitution is more dynamic and some of its elements can be reformed without the process of formal amendment. It is here, at this level, that analytical tools such as Hart’s rule of recognition could have ana-

W. Blackstone, Commentaries on the Laws of England, Book I, (1765), Chapter

121

7.

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lytical strength in explaining what was happening in the seventeenth century political system of England: constitutional changes short of the replacement of the total legal order of England by an alternative legal order. In other words, the fact that some elements of the constitution have been changed does not mean that the legal order as a whole has been nullified and replaced. In relation to systems with unwritten constitutions, such as the English legal system, Kelsen’s articulation of constitutional changes, through a coup or otherwise, does not have to bring about such changes across the board. Replacement of a monarch, a modification of legislative procedures (including the role of stake-holding entities such as houses of parliament), does not necessarily change the basic norm (nor affect the efficacy of the entire legal system). The legal system in its entirety continues on its original terms, having accommodated the relevant constitutional changes. There is no need for presupposing a new basic norm. Overall, one has to agree with Finnis that ‘the self-interpretation of English law has been clear and definite in its assertion that the law, even the constitutional law, of the kingdom is affected neither in content nor in identity by coups and counter-coups’.122

Finnis, 47.

122

6. The rule of law The positivity of the law as emphasised by the pure theory, its separateness from extra-legal values and interests, or considerations of power, inherently requires addressing the rule of law. For, if the law is the sole set of rules that regulate human conduct, it has to perform that task on exclusive terms. Kelsen explains that the principle of the rule of law (Rechtsstaat) is in essence a principle of legal security.1 As the State operates exclusively through the law, the concept of the rule of law overrides the perception of dualism of State and law by maintaining that all actions of State are based on law and limited by law.2 There is no such thing as legal vacuum. If the legal order does not obligate individuals, they are legally free. Whoever attempts to force them to behave otherwise, himself commits a delict against the existing law. Insofar as a legal order is silent it constitutes a sphere of individual liberty. Only on the authority of a legal norm are State organs entitled to interfere with the liberty of an individual.3 Individuals are free, unlike State organs, and therefore in the absence of legal prohibition are free, while every State activity requires a basis in law.4 As Dicey further explains, in the context of English law, the rule of law has been described as ‘supremacy of the law, or the security given under the English constitution to the rights of individuals’.5 Hart also describes Rechtsstaat as involving ‘liberty of speech, and of press, the right of association, the need that laws should be published and made widely known before they are enforced, the need to control administrative agencies, the insistence that there should be no criminal liability without fault, and the importance of the principle of legality, nulla poena sine lege’.6 However, Dicey and Hart speak here about more than Kelsen, because Kelsen’s thesis of legal security does not inevitably involve the State’s respect for any specified amount of individual rights.

H Kelsen, Reine Rechtslehre (1934) (‘RR’), 257. H Kelsen, Allgemeine Staatslehre (Berlin, 1925) (‘AS’), 90–1. 3 H Kelsen, General Theory of the Law and State (1940) (‘GT’), 271. 4 GT, 264. 5 AV Dicey, The Law of the Constitution (8th edn, 1915), 179. 6 HLA Hart, Positivism and the Separation of Law and Morals, 71 Harvard LR (1958), 595. 1 2

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A similar preconception appears in Ihering’s theory, albeit to a lesser degree. Ihering distinguishes between unilaterally and bilaterally binding norms; the latter norms are those which are enacted by authorities yet bind both the author and addressee of the norm; the former norms bind only the addressee but not the author. Bilaterally binding norms emphasise the sovereignty of the law. For, the idea that ‘the authority of the State itself should respect the norms issued by it’ emphasises the ideal of the rule of law.7 Ihering also queries whether law could exist under a despot that can treat its subjects at his unfettered whim, and suggests that, ‘[i]n so far as we understand by law merely a sum of compulsory norms, yes. In so far as we apply the standard of that which the law can and should be, viz., the assured order of civil society, no.’8 Kelsen’s approach to identifying the proper meaning of the rule of law is more nuanced. Kelsen admits the possibility of the formal as opposed to the material concept of the rule of law which does not go to the extent to which State authorities are made accountable or to which individual rights are protected, but goes merely to the requirement that State activities derive their ground of validity from the legal order. In this sense, all States could be said to have the rule of law.9 Kelsen’s emphasis on the distinction between formal and material rule of law reflects the broad profile of the pure theory to capture the nature of all legal systems. Kelsen’s position that every State is a Rechtsstaat has drawn to itself the observation that the notion of the Rule of Law is thus reduced to the issue of pure semantics.10 For, authoritarian regimes could then be said to be premised on the rule of law. Obedience paid to them would be at the centre of the idea of the rule of law. A formal rule of law can exist within any dictatorship, even if a despot or dictator would be empowered by law to act at his whim anytime and to do anything he wishes to his subjects, for a simple reason that the despot’s omnipotence towards his subjects would in such cases be authorised by the efficaciously functioning legal order. On that version, any act of coercion undertaken by the State can be sanctioned by the rule of law if it follows from the law, and not merely from the spontaneous and contemporary will of the State. However, with Kelsen, the formal rule of law is merely one way in which the concept of the rule of law manifests itself, together with the material rule of law. However, the more restrictive concept of the formal rule of law, affiliated with the existence of the efficaciously functioning legal order, is not alien to the workings of the UK legal system. 9

R von Ihering, Law as a Means to an End (1913), 263, 267. Ihering, 263. AS, 91. 10 R Cotterrell, The Politics of Jurisprudence – A Critical Introduction to Legal Philosophy (1989), 113. 7 8

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Kelsen explains that the very existence of the efficaciously existing legal order means that ‘a certain degree of arbitrariness is inevitably involved in the application of the law which is necessarily also a creation of law’. This is especially the case where ‘the discretionary power or “arbitrariness” of the legislative organ is practically unlimited. The parliament is sovereign; and the sovereignty of the parliament is the sovereignty of the people within a representative democracy.’11 Moreover if, as with Dicey, parliamentary sovereignty can prevail over the rule of law, things the parliament has willed should be done even at the expense of the rule of law. And then, the legislature may delegate a great deal of public authority to the executive, with major implications right down the line for the rights of individuals. On this vision, the existence of the rule of law in the relevant society does not turn on the amount of rights that individuals have. Instead, the rule of law becomes compatible with the utilitarian premise that the State as the sovereign regulator of rights can intrude into individual freedom as much or as little as the dictates of public interest and utility perceived by the State would require. To illustrate, as Lord Wright reasoned in Liversidge v Anderson: it seems to have been suggested on behalf of the appellant that this House was being asked to countenance arbitrary, despotic or tyrannous conduct. But in the constitution of this country there are no guaranteed or absolute rights. The safeguard of British liberty is in the good sense of the people and in the system of representative and responsible government which has been evolved. If extraordinary powers are here given, they are given because the emergency is extraordinary and are limited to the period of the emergency.12

Whatever the amount and extent of an individual’s rights, the individual is still seen as being treated according to the law. The same approach was embodied in the later House of Lords decision in Brind. The question of whether there is any singular fixed concept of the rule of law is the same as the question whether the distinction between Kelsen’s two types of the rule of law can be fixed and not fluid. Liversidge was concerned with the broad discretion conceded by the law to the decision-maker, to what extent discretion is compatible with the rule of law, and how far rule of law presupposes judicial review of the discretion. While initially these matters were controlled in English law by the approach set in Wednesbury, gradually courts began addressing the matters such as proportionality of State interference with individual rights, or called for ‘anxious scrutiny’ of State activities wherever

H Kelsen, Foundations of Democracy, 66 Ethics (1955), 1 (‘Ethics’), 78. Liversidge v Anderson [1942] AC 206, at 261 (per Lord Wright).

11 12

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the essence of a fundamental right would be endangered.13 So elements of the material rule of law have been emerging and gradually consolidating. However in Brind, the Court of Appeal again insisted that the matter of proportionality was merely one of the aspects of irrationality under Wednesbury; and then the House of Lords refused to be guided by the European Convention on Human Rights that would have enabled giving the requirements of proportionality the more fully fledged expression. Thus, there emerged a trend back towards Liversidge again. The tests of proportionality and irrationality are not the same. They require asking different questions: one queries about the scope of the authority granted to the decision-maker and the other queries about the impact on those against whom that authority is used. The contrast between the concepts of material and formal rule of law in the UK got exposed in Malone v UK, where the European Court of Human Rights addressed the issue of intercepting telephone conversations in contravention of Article 8 ECHR, and found that there was interference with the scope of this provision.14 In judging the ‘accordance with the law’, the court emphasised that the Convention ‘does not merely refer back to domestic law but also relates to the quality of the law. This required it to be compatible with the rule of law, which is expressly mentioned in the preamble to the Convention.’ In this context, the court observed that ‘[t]he phrase thus implies – and this follows from the object and purpose of Article 8 that there must be a measure of legal protection in domestic law against arbitrary interferences by public authorities with the rights safeguarded by paragraph 1.’ Furthermore, ‘where a power of the executive is exercised in secret, the risks of arbitrariness are evident’. ‘The law must be sufficiently clear in its terms to give citizens an adequate indication as to the circumstances in which and the conditions on which public authorities are empowered to resort to this secret and potentially dangerous interference with the right to respect for private life and correspondence.’15 In applying this principle to the case, the court concluded that the law on the ‘interception of communications for police purposes is somewhat obscure and open to differing interpretations’. It could not ‘be said with any reasonable certainty what elements of the powers to intercept are incorporated in legal rules and what elements remain within the discretion of the executive’. In view of the attendant obscurity and uncertainty as to the state of the law in this essential respect, the court concluded that the

Bugdaycay v SSHD [1987] All ER 940, at 952 (per Lord Bridge). Malone v UK, Application No. 8691/79, Judgment of 2 August 1984. 15 Ibid., para. 67.

13

14

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197

interference with the right under Article 8 constituted a breach of the European Convention.16 Later on, the introduction of the 1998 Human Rights Act has witnessed a significant shift from the formal to the material approach to the rule of law in the UK. In particular, the 1998 Act has enabled the consolidation of the courts’ approaches to the matters of proportionality as one of the bases of judicial review of administrative action. However, the Act has not directly superseded the legislative supremacy of the parliament and it is still widely believed that parliament could still legislate contrary to fundamental rights (subject to the possibility of the declaration of incompatibility being issued under section 4 of the Act, which is not the same as the fully fledged review of the primary legislation). One may query whether ‘arbitrariness’ is inherent to any form of government or legal system. Law has a regulatory function and imposition of duties on individuals against their will always possesses some element of arbitrariness. However, there is a different concept of arbitrariness when public authorities treat individuals without regard to their rights under the law of the land. For example, the executive needs to comply with the law that confers the authority to it; but that difference only hides the problem, because if the legislative organ is omnipotent and subject to no legal restrictions, then it can also authorise the executive to do the same and the duty to obey legislation would cover and validate any administrative action based on that legislation, however discretionary or arbitrary it may be. This is pretty much what happened in Liversidge and could happen again if the utilitarianism-friendly formal concept of the rule of law were to be taken as the basic premise. Thus, the genuine absence of, or limitation on, arbitrariness is connected with the existence of constitutional limits on all branches of the government, including the legislative authority. To illustrate, the logical consequence of the US Supreme Court not admitting judicial review of congressional legislation in Marbury v Madison would have been to exempt all three branches of the government from constitutional limits. For, if courts cannot refuse to apply an unconstitutional statute, then they have to validate not only that unconstitutional legislation as such but also any administrative decision adopted on the basis of that legislation. There would thus be no constitution worthy of the name. Similarly, if the UK has a meaningful constitution, then primary legislation has to be under judicial control of courts in one way or another. While the use of statutory interpretation methods and of extra-statutory bases of judicial review such as fairness have done their fair share in restricting the State interference with individual rights, the need of

Ibid., paras 79–80.

16

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the courts tackling primary legislation on its head may yet prove necessary for the maintenance of the integrity of the constitution. It seems that the existence of constitutional limits on the authority of parliament is crucial for the existence of the material rule of law in any society. If any public authority, legislative or not, is omnipotent with regard to individual rights, then formal rule of law can still be maintained in the absence of material rule of law. Public authorities’ activities, however intrusive or oppressive, would still have the basis in law and obedience would also be required by the law. In the context of English law, thus, rule of law acquires constitutional significance. It cannot be a constitutional principle if parliament can override it.

Conclusion The claim that common law is based not on logic but experience can be heard rather frequently. However, the contention that common law is not based on logic is only partly accurate. Logic and experience do not have to be seen as being in a mutual contradiction. It may be right that unlike the codified civil law, common law is not as centrally planned or arranged as civil law systems seem to be most of the time. The development of the range of substantive principles of common law has historically been conducted in ways that will not always reflect the a priori logical design. Even so, however, the common law still possesses its own systemic logic. It just happens that this logic is different from that underlying other legal systems. Nevertheless, the basic categories with which English law operates, and its basic structural foundations can be fully explained through the general jurisprudential method that could be used in any other legal system as well. The pure theory is neither apologetic to the existing legal order nor wants to critique or justify overthrowing it. It studies the UK legal system on the latter’s own terms. Kelsen’s pure theory of law is not really rigid, but is flexible, being capable of being applied to all legal systems. In the matters where the pure theory appears to be rigid, this is only to emphasise essential elements that all legal systems actually possess. The ultimate advantage of applying the pure theory to English law is to enable us to see the entire story of English law through the scientific prism of positivism. This study has demonstrated that the basic categories with which the pure theory of law operates have been deeply embedded both in the tradition of English-speaking legal scholarship, as well as in actual workings of English law. At times, and curiously enough, it becomes clear that Kelsen’s theory of law-making stages reflects the civil law model of adjudication and interpretation to a lesser extent than it reflects the common law model in which courts enjoy greater freedom in the process of law-making and interpretation. This has been manifested with regard to matters of judicial review and statutory interpretation. A principal gist of criticisms directed towards the pure theory seems to be, at times, querying or complaining why the pure theory is what it is and not something else; why does it not endorse the outcomes that other theories endorse, or why does it not accord the same relevance to non-legal factors as other theories accord to them? The answer is found, among others, in the practice of English 199

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courts. English courts take on board a variety of ethical, social and policy considerations. They do so not because they consider these to be identical with the law, but because the constitution endows them with the law-making authority in the exercise of which they can factor various extra-legal considerations to see whether they should contribute to the creation or modification of the rules of positive law. In the end, decisions on these matters are taken through the exercise of positive law authority with which the constitution endows the courts. It is also through the illustration of the connection between the constitutionally conferred authority and the application of the law to facts that the pure theory helps capture the essence of legal systems. Systemic unity and efficacy – which are among the principal notions with which the pure theory operates – are elements that invariably attend to the workings of the English legal system. The scientific view of English law, as opposed to its various ideological perceptions, thus helps to understand both the dynamics as well as the ultimate legitimacy of the legal process in the UK.

Index Burke, E 56

administration 38–9, 47, 113ff law-making authority of 84–85, 107 and primacy legislation 78 see also interpretation; judicial review analytical jurisprudence 10 ‘artificial reason’ 55–6, 103 Austin J 33, 47, 49, 58, 92, 94–5, 108, 149, 162 and ‘habitual obedience’ 92, 162, 169 autonomy (including self-determination) 63 authoritarianism 194 authority 6–7

Coke, Sir E 55–6, 97, 102, 174 common law changes in 103 and judicial review 121–2 and morality 58ff and natural law 46–7 origins of 175 common law courts 96–8, 145 and basic norm 175–6 constitutional status of 176–7 and judicial review 139–40, 145–6 and natural law 53–4 and parliament 62–3, 68–70, 72, 80–81, 97–9, 103–5, 113–14, 130, 140–41, 145–6, 156, 177 constitution, amendment of 89, 91 constitution, as customary law 87–8 constitution, essence of 85 constitution, historically first 97, 151, 154, 159, 167, 173–4, 179 constitution, material and formal 86–7 constitution, 1920 Austrian 126 constitution, ‘real’ 128–9, 160–62 constitution, unwritten 85, 88–9, 91, 97ff, 100ff, 108, 140 constitution, US 146–7 constitutional legislation 86, 88–90 constitutional review 126, 137–8, 143–4 see also judicial review constitutional rights 44 and judicial review 140 and natural law 44

Bacon, F 56 basic norm (Grundnorm) change of 178ff and constitution 157ff and independence by devolution 152–3 presupposition of 164ff and State creation 151–2 and the status of parliament 176 and usurpation 190–91 of the UK legal order 171ff Bell, J 73 Bennion, F 121 Bentham, J 36–7, 45, 47, 57, 108 Bingham, J 2, 54 Bingham, Lord 76, 93 Blackstone, Sir W 111 Browne-Wilkinson, Lord 64, 68 201

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and Rule of Law 193, 195 and statutory interpretation 112, 121 constitutionality, of statutes 142 see also judicial review of statutes constitutions, written 86, 88–9, 142, 144, 146–7 Cotterrell, R 18 customary law 87–8 democracy, development of 48–52 D’Entreves, AP 20, 155 Denning, Lord T 62, 75, 125, 185 Devlin, Lord P 60 Dicey, AV 36, 50–51, 66, 86, 101–3, 110, 123, 195 Diplock, Lord 71, 72, 78, 120 discretion, administrative 114ff and legislative conferral of authority 116–19 and royal prerogative 125 discretion, judicial 73 discretion, prosecutorial 13, 71 Eekelaar, J 187 efficacy, of legal norms 11, 179 efficacy, of total legal order 167ff, 172–3, 179 electoral reform 1832 92 enemy aliens 77–8 ‘ethical minimum’ 37, 50, 57 see also Jellinek, G fatherhood, legal 16 fiction 16–17, 66 Finnis, J 191 freedom (including liberty) 35–6, 100 and fundamental rights 44 and positive legal regulation 6, 23, 35–6, 48 and rule of law 193 Friedmann, W 9, 71, 81, 103, 155 Friedrich CJ 33, 36

‘general will’ 28 Goff, Lord 64 Goldsworthy, J 147 Goodhart, Sir A 9, 18, 48, 57, 59, 166 Grundnorm see basic norm Harris, JW 150, 165, 177 Hart, HLA 11, 18, 33, 40, 52–4, 67, 149, 163, 170 and rule of recognition 163, 170 hierarchy of norms and discretion 84, 115 general dynamics 83ff Hobbes, T 45, 56 Hoffmann, Lord 63 Holdsworth, Sir W 100 homicide 64–5 Honore, A 58 Human Rights Act 1998 90, 129, 197 imputation 16–17, 25–6, 66 and parliament 92 interest-based theories 36ff, 41, 46–7, 52 interpretation and the constitution 144–5 as a form of law-making 106–7 and legislator’s intention 69–72, 98, 109, 111–12, 117, 119, 121–3, 145 of statutes 53, 106ff, 123 Interessenjurisprudenz 43, 71, 105 interest-based theories 36, 41 constitutional dimension of 47 Is and Ought 8–11, 13 and efficacy of a legal order 182 James I 191–2 Jellinek, G 20, 37, 42, 45, 50, 57 ‘ethical minimum’ 37, 50, 57 judicial decisions, conflicts between 129 judicial review and common law 121–2

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constitutional 126, 131 and the rule of law 195–6 and statutory interpretation 121–3 and the ultra vires model 122–3 judicial review of statutes 142, 144–6, 147–8 and legislative ‘self–review’ 142–3 jurisprudence, analytical 2 justice 41–2 and morality 59 and natural law 53–4 Kant, I 8, 45 Laband P 113 Larenz, K 3, 18 Lauterpacht, H 9, 17, 22, 53, 57 Laws, Sir J 86, 88, 90, 109, 121 legal norms efficacy of 11 validity v application 12 legal personality 15 legal science 1ff and social sciences 3–6 legal system identity of 156–7 unity of 26, 83–4, 152 legislation 27ff, 45ff and constitution 87ff and democracy 48–52 and judicial review see judicial review of statutes; parliament primary and secondary 84–5 public opinion and 92 legislative intention see interpretation; judicial review liberty see freedom Llewelyn, K 163 Locke, J 124 Maine, Sir H 102 Maitland, Sir F 102

majority decision-making 28, 48, 90–91 medical judgment 64–5 mens rea 10, 12, 64–5, 111–12 morality 10, 56ff and autonomy (self-determination) 63 and common law 58ff and justice 59 and legislation 62, 72, 147 public and private 61 relativity of 63–4 vs policy and interest 63–5 and vulnerability 61 natural justice 132 natural law 34–5, 44, 47 and common law 53–4 and constitutional rights 44 and justice 53–4 and reasonableness 46–7 and revolution 35 Norman Conquest 97, 173–4, 178 norms see legal norms nullity 130ff and locus standi 136 and natural justice 132 and the ultra vires model 131, 134 Oakeshott, M 50, 124 ‘objective law’ 40, 46, 54 parliament and common law courts 62–3, 68–70, 72, 97–9, 103–5, 113–14, 130, 140–41, 145–6, 156, 177 and constitution 85, 91, 96–9, 128, 144–5 and the executive 126, 138–40 and imputation 92 and independence of colonies 153

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and 1998 Human Rights Act 90, 129, 197 privileges of 91 and the rule of law 195, 198 sovereignty of 91, 177, 183, 192, 195 and statutory interpretation 123, 137 supremacy of 177 see also judicial review of statutes policy see social policies Pollock, Sir F 36, 46–7, 68 positivism 1–3, 29 and formation of legal concepts 15 and individual freedom 23, 35 and natural law 33–4 and the object of legal science 8 and utilitarianism 28, 33 Pound, R 3, 39, 53, 67, 71, 109 practice statement 1966 105 precedent 101, 129–30 purity of legal method 1, 3–4, 159 and positivism 10, 15 and the scope of legal science 33 Raz, J 31, 58, 152–4, 156–7, 159, 186 ‘reason of State’ 22 reasonableness 46, 68, 71 and natural law 46–7 Reid, Lord 69 res judicata 127 revolution and constitutional disruptions 186, 189 and efficacy of a legal order 185ff French 1789 92 glorious 188, 190–91 Rousseau, J–J 28 royal prerogative 124ff rule of law and arbitrariness 196–7 Dicey on 193, 195

and judicial review of administrative decisions 195–6 and judicial review of statutes 197–8 material and formal 193 and parliament 195, 198 ‘rule of recognition’ see Hart, HLA Salmond, J 160–61, 175 on parliament 161–2 Scarman, Lord 79, 98–9, 176 Sedley LJ 177 Sein see Is and Ought separation of powers 138–9 Simpson, AVB 17 social policies and changes in common law 71–2, 74–5, 77–8 and ethics 74 and positivism 75 Sollen see Is and Ought Somalia 185 Southern Rhodesia 180–81, 183–5 sovereign, legislative 30–31, 183, 195 sovereignty (of a State) 94–6 State identity with law 20ff and imputation 26 organs of 25–6 population of 26–7 purpose of 31 society and 26–7, 29 will of 27–30 statutory interpretation see interpretation totalitarianism 36 ultra vires model 121, 123–4, 131 see also administration; discretion, administrative; judicial review unity of a legal system see legal system utilitarianism 20, 36, 39, 51–2, 56, 70, 93, 99, 116, 118, 164

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constitutional implications of 47 and democracy 48–58, 94 and interest-based theories 36 and legislation 51–2, 93 and majority vote 28, 48 and natural law 36 and positivism 33 and private (group) interests 37–8, 47–8, 51–2

Volksgeist 39–40 Von Ihering, R 3, 37–9, 48, 124–5, 186, 194 Wade, Sir W 93, 177, 187–8 Westminster Statute 1931 153 Wilberforce, Lord 69, 74, 110 Wolfenden Report 60–61