When considering the question of what the law is, it is important to question those making and enforcing the law, the nature of law, as well as the purpose of law. On the surface, individuals comply with the law either because the laws have been made and enforced by authority figures, and/or because they believe that a certain act is right or wrong. These questions branch out to concepts such as the Gunman Theory, positivism, and natural law, which attempt to explain how the law is to be perceived by society and why individuals comply with such laws. This article will outline the Gunman Theory and its critics, theories of positivism and natural law, as well as discussions on what the law ultimately is and could be.
The Gunman Theory draws an image of a gunman threatening to shoot an individual if they do not comply with their orders. It states that the law is essentially a set of commands; a sanctioning system which places individuals in a position where they are forced to comply with the law due to fear of punishment. Philosopher John Austin is perhaps best known for developing this command theory law. Austin argued that that the population at large is in the habit of obeying a sovereign figure, and the law is therefore a system of orders backed by threats. This way of thinking allows the law of the state to be distinguishable from other commands such as those from God, or an employer. This also makes it relatively easier for individuals to perceive the law because it is self-centred in nature, following the “don’t do it if you don’t want punishment” narrative rather than “don’t do it because you’re harming society.”
Breaking Down The Gunman
The first issue with the Gunman Theory is that the threat of sanction is temporary in the case of the gunman (when the gunman walks away, there is no more threat of punishment), but this threat of sanction is persistent and arguably permanent in the case of the law. The threat of legal punishment is always present in society and it is theoretically impossible for individuals to escape such sanctions, due to strict enforcement and implementation of the laws by authoritative bodies. Secondly, in order for the Gunman Theory to resemble a legal system, the gunman cannot be subordinate to another entity. This expectation cannot be met as the gunman can always be arrested or sanctioned themself for the threat imposed on another individual. Thirdly, laws also give people the capacity to carry out certain acts, such as making a will. These are named by H L A Hart as “power-conferring laws,” and cannot be seen in the gunman scenario, as the gunman’s ‘laws’ are only prohibitive in nature. In the real world, laws are both prohibitive and facilitative, such that prohibitive laws outline the actions which should not be carried out by individuals, such as murder, whereas facilitative laws allow and offer individuals the opportunity to carry out certain actions, such as making a will.
Austin has been criticised for his rather simplistic view of the law, particularly by Hart, partly because it is difficult to identify a sovereign in many states, but also because many areas of law such as contract, which grant powers to people, do not fit neatly into such a definition of the law. As a legal positivist, Hart insisted on the separation between law and morality, arguing that the validity of a law is not dependent upon its moral acceptability. Thus, even a morally repugnant law may be legally valid, but it is important to note that this does not mean that we must then obey the laws which are morally repugnant. In Hart’s view, obedience and compliance remains a matter of personal decision and conscience.
Furthermore, Hart argued for two categories of rules — primary and secondary — which form the basis of a functioning legal system. Primary rules either impose legal obligation, as in criminal, or grant powers, as in the power to make a will in the law of succession, or the power to enter into a contract. Secondary rules are concerned with the operation of primary legal rules; i.e. the rule of recognition setting the criteria for identifying primary rules, rules of change identifying how legal rules can be formed, amended, or repealed, and the rule of adjudication enabling the courts not only to settle disputes, but also to interpret the law.
Legal positivists believe that a law is a legal rule which, if made in the manner recognised by the rule of recognition in the state, is valid irrespective of its content. For example, this rule of recognition could provide that a rule passed in accordance with these rules is one passed by the legislative power in the state, such as Parliament. This is because conventions develop over time, and we cannot ignore the existence of judge-made laws.
Generally, positivists believe that there is no necessary dependence on moral correctness or desirability for a law to be legally valid. Many positivists understand law as a social fact, and having a fundamentally social nature, that it is a human artefact which has been socially constructed. Law exists in virtue of the fact that it has been posited as humans create social institutions such as legislatures, courts, and legal officials which allow society to recognise and practice the law in various forms. These human social processes bring legal norms into existence and validity, and are also the means by which they are modified or extinguished.
It can be confusing to understand legal positivism as it may indeed overlap with concepts in natural law arguments. However, as we will discuss shortly, natural lawyers would also add the fact that laws need a social purpose, on top of it representing a social fact. If the law is a car and morality is petrol, positivists may say that a car without petrol is still a car as it resembles one, but natural lawyers may say that a car without petrol is not a car because it cannot drive.
Natural legal theory, on the other hand, rejects the positivist idea. Natural lawyers believe that the validity of man-made laws depends on their compatibility with a higher moral authority. If a law does not satisfy the requirements of this moral authority, the law would lack validity.
Divine law, commonly seen as a ‘cousin’ to natural law, was similar yet distinct from natural law in its own ways. Thomas Aquinas was a 13th Century Catholic philosopher and theologian, who explored this concept of divine law. This is concerned with the standards which humans must conform to in order to attain salvation. Divine laws are revealed to humankind by inspiration or revelation, as for example the Ten Commandments contained in the Bible. Divine law removes the need for humans to be in any doubt about the moral rules they should be following for their own good. There are some Romans, however, who made the distinction between divine law and natural law. Divine law was derived from religions and Gods, whereas natural law was derived from nature itself.
However, it is important to note that many natural lawyers do accept that law is a matter of social fact. As another example, John Finnis did not reject the idea of a social facts test for legal validity, and claimed that, properly understood, natural law theory accords a central and vitally important place to human positive law. Therefore, natural law thinking essentially already contains within it all the legal positivism. It is important to note, however, that Finnis in this case is asking the question of what the moral purpose of law is, rather than what the law is in itself.
So What is Law?
It is interesting that, whilst all of the above schools of thoughts recognise that law is a system of sanctions to various extents, the reasons why one should comply with the law under each school are rather distinct. In the Gunman Theory, we comply with the law because of a temporary threat of punishment; in positivism, we comply with the law because it is a matter of social fact that we, as humans, built to sustain social functioning; in natural law, we comply with the law because of moral reasoning.
In discussing legal positivism, many question the fairness for certain individuals to have so much power in legal authoritative positions. Is it not true that all people should be equal under society? This can be seen as unfair, but authorities are also holding themselves accountable by passing the laws that they pass. It can, in turn, be seen as fair if we say that authorities have a ‘normal citizen’ role and an ‘authority figure’ role in society, where people have different roles or ‘hats’ to wear in different circumstances. However, it is completely reasonable to question the extent to which this ‘role’ idea is valid in today’s society, due to the corruptibility of authorities and the ability for citizens to hold politicians to accountability, or lack thereof.
There is another thought experiment of the ‘society of angels’. If there is a society of ‘angels’ who are always morally correct, there is no theoretical need for sanctions in the law. However, it may be better to assume that people can take the wrong step and make the ‘morally wrong’ decision at any time, rather than to assume that people will always be ‘good’. It is also unrealistic for every person in society to hold the same moral values and that they will follow the same behavioural standards and rules accordingly under all circumstances. These ‘angels’ can also explore other societies and notice that some rules in their society are flawed and therefore need alterations, resulting in what is arguably disobedience and thus non-compliance with the current law.
Lord Sumption argued that whilst we do not have an obligation to obey COVID-19 laws because of sanctions and punishment, we do have an obligation to obey these laws because it is the right thing to do. Depending on the circumstances and context of a scenario, it may be useful for individuals to have a sense of understanding of both morals, laws, sanctions, and obligations, as the aforementioned schools of thoughts must essentially all be understood for our society to run the way it should. Whether one believes that they must comply with the law due to sanctions or merit, and whether there is a connection between law and morality, it is crucial to recognise the common ideas between these concepts and understand how the system of law works as it does.
Work Cited and Further Reading
Austin, John. The Province of Jurisprudence Determined. Hackett, 1998.
Cambridge Law Faculty and Jonathan Sumption, Government by Decree: COVID-19 and the Constitution. YouTube, YouTube, 27 Oct. 2020, https://www.youtube.com/watch?v=amDv2gk8aa0&list=WL&index=30&t=1180s.
Gardner, John. Law as a Leap of Faith: essays on Law in General. Oxford University Press, 2014.
Gray, Robert. “Coercive Orders and Obligatory Laws.” Irish Jurist (1966-), vol. 10, no. 1, 1975, pp. 59-73. JSTOR, www.jstor.org/stable/44026213.
Hardin, Russell. “Sanction and Obligation.” The Monist, vol. 68, no. 3, 1985, pp. 403-418., doi:10.5840/monist198568330.
Hart, Herbert Lionel Adolphus. The Concept of Law. Oxford University Press, 2014.
Kaplan, Jeffrey. “Hart — Concept of Law.” YouTube, YouTube, 22 Jun. 2020, https://www.youtube.com/watch?v=0F62gA1LGfw&list=PL7YPshZMeLIYDwqvtqIHm9SOQpSeKVKU0.
Lamond, Grant. “Coercion.” International Encyclopedia of Ethics, 2013, https://doi.org/10.1002/9781444367072.wbiee696.pub2.
Marmor, A. “Hart’s Critique of Austin’s Theory.” https://www.pravo.unizg.hr/_download/repository/Hart_vs_Austin.pdf.