The term ‘antinomy’ signifies a real or apparent incompatibility between two laws, where such incompatibility is also mutual in nature. An antinomy would be seen where there are two opposing positions that provide exclusive and exhaustive explanations. In jurisprudence, an antinomy is generally seen between two theories of law, which are, natural law theory and positivism. Both these theories of law have provided two mutually exclusive and exhaustive theories. However, in Kelsen’s opinion, neither natural law nor positivism are capable of explaining law in its entirety and to the exclusion of any third theory of law. Kelsen proposed the Pure theory of law as a middle ground between natural law and positivism. It is important to note that Kelsen is one of the first jurists to provide an attempt at a solution for the antinomy by proposing a third way, in the Pure Theory of Law.
At the outset, it is pertinent to briefly summarise the two prominent strains within the positivist theory. First, the separability thesis which claims that the concept of law can be explicated independently of morality. Second, the normativity thesis, which claims concept of law can be explicated independently of fact. Kelsen’s theory can be explained as a coupling of separability and normativity theses. Kelsen rejected reductive legal positivism.
The antinomy in jurisprudence is seen in the opposing theories of natural law and positivism. In the natural law theory, law is seen as being subject to moral constraints. In positivism, law is seen as a part of the world of fact or nature. This presents us with a dichotomy, where any discourse on the concept of law must accept one of the two propositions: law is either subject to moral constraints, or it is a part of world of fact. Applied to law, positivism would propose that human will and power are observable facts and therefore law can be reduced to human will and power and therefore, it does not need to resort to morality.
Jurisprudential antinomy reflects the position in jurisprudence created due to the mutual exclusivity and self-sufficiency of natural law and empirico- positivism theories. Here natural law and empirico-positivism were mutually exclusive because they each expressed opposite views on the separability between law and morality. These theories were self-sufficient or exhaustive because they did not leave any room for a third theory. The antinomy that was posited by Kelsen was that the law making process will become redundant if the content of law is determined only by morality. On the other hand, if law becomes an outcome only of the law making process, then it shall be simply the outcome of an arbitrary will. Kelsen’s solution to this problem was that both the moralism and reductionism approaches rested on the fallacy or ill-conceived notions of legal validity. According to Kelsen, law need not derive validity through morality as moralism dictates, nor does it have to derive validity from observable human will and actions, as provided by empirico-positivism. According to Kelsen, law can be normative in itself without recourse to morality or facts. In that sense, the law is pure because it need to make recourse to any external factor to prove its validity.
Jurisprudential antinomy is also seen through the prism of antinomy that was first offered by Immanuel Kant, whose seminal work, The Critique of Pure Reason also presented some antinomies. Paulson has advocated that Kelsen can only be understood if seen through the prism of Kant. In that sense, Paulson has called Kelsen a neo-Kantian. Kant said that there is a theoretical-empirical realm where there can be knowledge of the sensible world as well as a practical realm where freedom can be manifested. Kelsen’s position was similar to Kant’s in that, he argued that there exists both a realm of facts and normative domain.
Kelsen’s contribution to the doctrine of legal positivism that led to the changing of the dimensions of the trajectory was the ‘middle way’ that was advocated by him for the resolution of the antinomy presented by natural law and positivism. This includes the radical notion that separability between law and morality may be an important dimension for distinguishing between the theories of law, but it was not the only dimension. According to Kelsen, an important dimension of distinguishing between theories of law could also be separability or inseparability between law and fact. Kelsen first showed that natural law theory and empirico-positivism were not the only two theories that could be exhaustive of the field and that there can be alternatives. The alternative which was proposed by Kelsen was his Pure Theory of Law, which does not depend on considerations of either morality or matters of fact.
The solution to the antinomy presented in jurisprudence, is one of the important contributions by Kelson to the field of legal positivism. This is because Kelsen was able to establish a science of legal norms, independent from the political and cultural forces that produce these norms. In that sense, Kelsen maintained the separability between law and morals as well. At the same time, Kelsen separated law from facts, which was the premise of empirico-positivism. In doing so, Kelsen posited legal system as a system of norms, where one norm validates the other and the norms do not depend on the facts. A norm is not like a fact, because it does not depend on what there is, but what ought to be done or not done. By doing so, Kelsen was able to provide a middle ground between the antinomy of natural law and empirico-positivism.
Kelsen aimed to give a scientific status to law without referring to the fact based conception of law. He proposed that the meaning of legal rules can be understood through the notion of norm and the co-related ought.
HLA Hart’s seminal work, The Concept of Law is considered to be one of the strongest arguments to be developed against John Austin’s Command theory. According to Hart, one of the biggest drawbacks of the Command theory is that it fails to consider the real motivations behind why people follow laws. Command theory based the obedience of law on the ground that command by the sovereign is to be followed as disobedience would lead to sanction of law. On the contrary, for Hart, the real reason why people follow law is due to a sense of obligation, which is what makes people appreciate the internal aspects of law. Hart criticised Austin’s theory on all three elements that were included in Austin’s definition of law, that is, command, sovereign and sanction.
According to Austin, law is the general command of the sovereign, which is imposed through sanction. In defining law thus, Austin made three specific claims about law. First, being command of sovereign, laws are addressed from superiors to inferiors. Second, laws are enforced with the help of fear of sanctions. Third, laws can only be given by the sovereign, that is, an identifiable human being, who is habitually obeyed by the members of the society.
Hart’s seminal work, The Concept of Law, starts with a discussion of Austin’s command theory. One of the concerns for Hart was the fact that Austin’s theory had been much criticised due to its inability to distinguish between legitimate and illegitimate commands, as Austin does not give any direction to the sovereign as to how he should make the law and simply says that a command of the sovereign is the positive law.
Hart criticised Austin on the ground that law modern legal systems do not consist merely of commands backed by sanction and therefore, Austin’s command theory is inadequate to explain modern legal systems. Particularly, the laws governing the formation and implementation of contracts, wills, and marriages are not explained as commands of the sovereign backed by sanction. Rather, these laws are based on the free will of the individuals by which they can define the range and limits of their rights, and obligations. According to Hart, instead of command, the term “power conferring rules,” would be better able to explain the nature of these laws. The power conferring rules create a framework within which individuals can determine their rights and liabilities.When individuals do exercise these rights, they do so not because the fear of sanction compels them, but because they choose to do so.
Hart also defined the nature of laws which provide the scope and limitations of judicial, legislative, and executive power. These rules were the secondary rules of recognition, change and adjudication. The legislature could make or amend laws and the judge could give a ruling under these secondary rules. Hart criticised Austin’s theory on the basis that it is inadequate to explain these laws as these are not commands backed by sanctions.
The second objection that Hart made to Austin’s theory was that the word “command” implies that there is a top down hierarchy within which commands are passed on from the sovereign who is at the top of the hierarchy. Hart said that in modern legal systems, legislations often have a self-binding force, which cannot be explained by the command theory. Hart also objects to Austin’s conceptualisation of law as command as such commands will not be able to explain customary laws. Hart considered that the authority of law is social. Therefore, the ultimate criterion of validity in a legal system is not a legal norm, but a social rule that is practiced within the legal system.
Hart’s objections to Austin’s sovereign stemmed from the fact that in Austin’s conceptualisation, sovereign was someone who was habitually obeyed by all members of the society and in turn was not in the habit of giving obedience to anyone. Habitual obedience cannot explain the continuity of laws in the legal system.
Hart focused especially on the element of obligation that is an important characteristic of law. The element of obligation, or the lack of it was also one of the criticisms that Hart had against the Command theory by Austin. In Hart’s opinion, the lack of obligation in Austin’s theory is one of the flaws in the Command theory, because command can be legitimate or illegitimate, even when it proceeds from the sovereign. There are societies, where people are terrorised into obeying the commands of their sovereign. However, there is something wrong in societies where rules are observed because these are commands and not because these are thought to be obligatory by the members of the society.
According to Hart, rules have both internal and external aspects. The internal aspects are perceived when there is a sense of obligation attached to the rules. Hart argues that it is not sanction that ensures obedience to law, because a theory of law that is centered in sanctions ignores the real motivation for people to obey law. Hart says that from the internal point of view, the validity or enforceability of law is not based on sanctions, but on obligation. The internal point of view does not imply that people who accept the rules accept their moral legitimacy, but that “people are disposed to guide and evaluate conduct in accordance with the rules”.
Hart argued that positivism did not necessarily have to separate law from morals. This is clear from his criticism of Austin’s trilogy of command, sanction and sovereign as inadequate “due to the omission of some essential connection with morality”.
HLA Hart’s theory helps in creating a better understanding of legal positivism. The greatest contribution that Hart made to jurisprudence was in the expounding the ‘internal aspects of law’. Lon Fuller, despite his criticism of certain aspects of Hart’s theory has noted that Hart has made an enduring contribution to the literature of legal philosophy. One of the contributions of Hart to legal positivism is the idea that positivism does not necessarily separate law from morality.
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