Conflicting Views in Jurisprudence - 'The Classic Divide'
On the basis of the three recognised strands of jurisprudential thought already outlined, it is to be appreciated that there has been an ongoing juxtaposition of views that has led to a great deal of debate in this area that shall be considered in this section under a number of specific sub-headings as a reflection of this debate.
(a) All systems of law should contain an element of 'Natural Law'
H. L. A. Hart was one of the key theorists that claimed it is actually possible to identify a core set of moral principles that constitute the minimum content of natural law that any legal system has to have in place to survive.
But it is also to be appreciated that the function of any legal order is not merely to minimise the risks of survival, since it also must look to maximise social happiness or welfare by recognising, according to Epstein.
Moreover, it must be recognised that any understanding of natural law can be used synonymously with natural justice, although most contemporary political and legal theorists separate the two and have exercised a profound influence on the development of the common law, according to Blackstone.
Therefore, with this in mind, it is important to appreciate that H. L. A. Hart came from the tradition of ordinary language jurisprudence owed to the work of Austin that exposed the hidden rigor in ordinary language in our speech that helped us understand how terms could be used to impute or defeat responsibility.
However, it must also be recognised that John Austin did not think of his work as offering any guidance on larger questions of political organisation and theory and that was something H. L. A. Hart followed, which may explain why Hart's introductory book is called 'The CONCEPT of Law' as opposed to 'The FUNCTION of Law' as a reflection of his understanding of the area.
(b) Jurisprudence is about much more than simply language
Within a decade of Austin's death, however, political philosophy moved in a completely different direction to that which had previously been take, with works from Friedrich Hayek, John Rawls and Robert Nozick that all drew explicit connections between matters of language, morality and political theory, that lawyers find quite natural because of the fact that any commitment to a 'rule of law' requires legal rules to be in intelligible form.
Therefore, with this in mind, even though H. L. A. Hart was often somewhat reluctant to draw these connections between technical philosophy and political theory, they are implicit in his work and generally support a system of strong property rights within the framework of limited, but democratic, national state government, according to Searle.
On this basis, subsequently, H. L. A. Hart used the aforementioned concept of the 'minimum content of natural law' to smooth over the perennial tension between legal positivism and natural law, upon which H. L. A. Hart had already had his famous debate with Lon Fuller.
But it is also to be appreciated that whilst H. L. A. Hart may have been considered to have won that debate. This because of the fact that Hart actually recognised that law is a set of rules enforced by the sovereign over some determinate territory through the legitimate use of force, it could be argued there is no method of visual or analytical inspection that separates law-like statements from 'bills' yet to be enacted and also laws that have been repealed because all are the same to H. L. A. Hart so that, in England, parliamentary supremacy utilises a much simpler 'rule of recognition'.
(c) Which laws should govern society?
The decisive inquiry in this area is in relation to the rules meant to govern the behaviour of ordinary individuals and public officials because neither meaning nor morality determines whether a law-like statement is legal.
This effectively means that if the local sovereign enforces a terrible set of rules, these are the laws at that time, even if some later sovereign chooses, as in Iraq, to punish the individuals who propagated and enforced those rules, according to Epstein.
As a result, it is to be appreciated that we shall never make progress if moral sentimentalism clouds our judgement as to the destructive role bad laws' play in the conduct of human affairs.
Therefore, on this basis, what Kelsen recognised as the 'pure' theory of law is meant to purge the law of any of these connections and overtones so law becomes 'pure' of politics, morality, and personal sentiment, since Kelsen thought laws were commands to officials and not individuals they were directed to.
(d) Is there a place for morality in law?
The mere fact the provenance of a certain rule is considered law does not mean its content has to be accepted on moral grounds because moral criticism of existing laws is every bit as important as moral arguments in their defence, according to Nozick.
Indeed, the separation of law from morals makes it easier to denounce laws within a legal system from outside it within any well-functioning democracy and there is nothing about H. L. A. Hart's brand of positivism requiring glorification of the status quo, nor its denunciation.
But whilst fewer observers would make a connection between Dworkinian jurisprudence and deontological punishment theory, the emphasis on moral principle and right answers makes it easy to draw a connection.
However, if we think of punishment theories as subdivisions of moral philosophy, then it is orthogonal to jurisprudence as the plausible but entirely specious connection with Ronald Dworkin indicates and so, on this basis, there is no necessary connection between jurisprudence and punishment.
But, where morality is concerned, the focal point is of a person of sound morality, according to Finnis, because the idea virtue plays a central role in criminal liability is a key feature of natural law jurisprudence if one interprets the absence of virtue as a condition of just punishment and positivism. Nevertheless, there is no reason to assume positivism excludes moral concepts from the criteria of legal validity because there would be no conflict if an aretaic theory of punishment did not treat the absence of virtue as necessary for criminal liability, according to Huigens.
(e) The issue of sovereignty
In spite of this, nothing in that theory makes it wise, or immoral, to undertake acts of civil disobedience or rebellion. But it is also to be appreciated that, if the current sovereign is challenged by dissidents, then the uncertainties over who is in charge means practical conditions make it hard, if not impossible, to decide who is the sovereign, according to Epstein.
Nonetheless, even then the inescapable 'muddiness' in times of crisis does not count as an objection to the basic theory that offers a criterion of judgement as to what counts as sovereignty - not a guarantee all questions of political order should be easy to resolve.