King's Student Law Review

Man has long searched for a Promised Land in which the law could perfectly and impeccably reside. This pursuit is encapsulated in one question – “What is law?”[1]

Thomas Hobbes, the father of the social contract tradition, attempted an answer with a sweeping dictum: “auctoritas non veritas facit legem” (authority, not truth makes the law).[2]

This article explores Hobbesian authority in the light of the late legal positivist H.L.A. Hart’s account of sovereignty in The Concept of Law, and considers whether authority deserves the monopoly it enjoys over jurisprudential discourses, drawing on the theories of later jurists. It is the author’s thesis that while the concept of accepted authority is key to valid legislation, there is a residual role for “truth” and “reason” in rationalising acceptance and explaining the value of law.

I. “What is Truth?”

The invocation of ‘truth’ cannot satisfy the inquisitive observer of the law – the question “quid est veritas?”[3] appears to admit of no conclusive answer.

After all, to say that the law is true is an exercise of human reason, based on “a natural and initial inclination to good which [man] has in common with all substances”[4] – the province of natural law. This forms a universal system of “ius”, where “there is one standard of truth or rightness for everybody, and that this is equally known by everyone”. On that basis, “true law [lex] is right reason in agreement with nature”.[5] This entire doctrine, espoused by the likes of Grotius, seems to assume what it proves, that there can be a universal truth accessible through reason.

II. Total War and the Need for Authority

Hobbes’ dictum is a direct objection. He conceived the “condition of mere nature” as a “condition of war of every man against every man”,[6] struggling towards self-preservation – man’s right of nature is a right to everything. Hobbes reasoned that peace could only be achieved by submission to one absolute authority, the Sovereign, who alone can impartially resolve all conflicts.

There are two specific features that must be highlighted from this general idea. Firstly, Hobbes based authority on a social contract between all citizens agreeing to mutually transfer their unlimited right to self-preservation to one sovereign, and this was based on two “laws of nature”: the first, most fundamental, is “to seek peace, and follow it”; the second is “to lay down his right to all things; and be contented with so much liberty against other men, as he would allow other men against himself”.[7] So Hobbes was not a purist, or even a positivist, but rather an “enlightened” natural lawyer.

Secondly, the authority in Hobbes’ peaceful world necessarily rests on ‘some one man… supreme and absolute’, and not an assembly of men or a set of constitutional rules, both of which relies on further adjudication when there is disagreement, and so an infinitive regress will go on until we reach the terminus ultimus in one absolute authority.[8] This authority, Hobbes contended, must consist in a human will, for rules per se are powerless.

Therefore, as long as law is made by authority, “there can be no question of a ‘truth’ of law. For law, even just law, is norm, and – as norm – can be neither true nor false”.[9] To what extent is all this accurate?

III. Authority and Hart’s Rule of Recognition

While Hobbes’ dictum is intellectually attractive for its simplicity, it is by no means self-evident that authority is more conceptually certain. Authority might be generalised as “the right to command, and correlatively, the right to be obeyed”.[10] But as Raz stressed, this is inaccurate because authority includes “the right to do many other things”, and “the notion of a right is even more complex”.[11] It may well be better to adopt Lucas’ analysis of authority as an ability to perform an action which changes the normative situation.[12]

Nevertheless, we are left with three further questions. How do we identify authority? Must ultimate authority reside in a person? And is authority truly illimitable?

Hart addressed this in criticising Austin.[13] He proposed the “rule of recognition”, a secondary rule which validates primary rules (positive law) in a system.[14] This involves an internal statement which “manifests [the users’] acceptance of them as guiding rules… without stating the fact that it is accepted”.[15] This is “an ultimate rule”,[16] and in its incarnation as a “rule of adjudication”[17] identifying judges/jurisdiction, it remedies the inefficiency of disputes that would otherwise “continue interminably”.[18]

Thus, Hobbes’ doctrine must be qualified – Hart’s rule of recognition can be the ultimate authority that identifies the Sovereign lawmaker. Indeed, it does not seem to necessitate a human will. This theory in turn allows the Sovereign to be disabled from making certain laws without imposing any duty, as the rule of recognition merely provides the conditions for a valid law.[19]

IV. The Reason of Stability and Order

Is this a satisfactory place for analytical jurisprudence to rest? Not quite. It still leaves open the question of how we identify the rule of recognition itself. Hart posits that the rule is simply accepted as a matter of fact.[20] As Jules Coleman put it, “it just is”. Accepted by whom? Hart explains that acceptance comes from the officials who identify and apply the law, in expressly acknowledging the law with an internal critical attitude, while the populace only tacitly acquiesces, or obeys for personal reasons.[21]

It is at the stage of acceptance that the author takes issue with the centrality of authority. As Jean Hampton pointed out, it seems artificial to say that an official identified by the rule makes the rule authoritative by obeying it. She rightly characterises the extra-legal role of citizens in changing the rule of recognition as more active, by influencing through elections the rules on changing officials and legislative procedures. The rule of recognition, and hence authority, is ultimately based on the authoritative “human will” of the people[22].

At the root of authority, therefore, lies a certain human will. Authority as the source of law simply obscures the reality that authority is not a pure, value-free concept, but is itself derived from human will. Surely, this cannot be a mere arbitrary will devoid of any rationale. It is the author’s submission that here, we come back to a notion of truth and reason – the officials and especially the people accept a rule of recognition (and thus recognises an authority) based on certain reasons, and while these reasons do differ, there is implicit in this rational process a common consideration, a “truth”, a “reason” (indeed, even Hobbes relied on universal laws of nature[23]) – the consideration of stability and order.

This proposition, unconventional as it may appear, is not without foundation. In criticising Hart, Robert Ladenson, for instance, characterised governmental authority (i.e. the notion of the right to rule)[24] as a “justificatory-right”[25] for the governmental power to coerce by law, rejecting that the “mere claim of having acted under governmental authority always serves as a blanket justification for anything a governmental official might do”.[26] Thus, authority, be it valid or accepted, is by no means the last word in rationalising the “duties of subjects with regard to allegiance to the state and compliance with the law”.[27]

More importantly, Ladenson maintained that governmental authority and power fundamentally consist in “an ability to maintain the social peace and to protect a social group from outside invasion”.[28] In other words, the consideration of stability and order of society form the conceptual basis of authority exercising the powers of law, and this is the immanent truth, the overarching reason, which spurs popular assent to any rule of recognition for the identification of a Sovereign authority. It is the invisible hand that gives an ultimate, rational justification to authority.

It is therefore conceivable that officials would cease to recognise a regime that grossly violates human rights, for the stability of the legal order would be irreparably disrupted. Similarly, the electorate as a whole accepts the recognition of a Sovereign due to the stability it entails – the majority assents based on their confidence in the Sovereign’s power to maintain stability, and the minority, too, accepts the less-than-ideal result in the knowledge that the overall democratic process preserves stability and order, or the common good, so to speak.

It is with reference to the very concept of “common good”, as defined by John Finnis,[29] that we find further pedigree for the proposition. In accepting the recognition of an authority and submitting to the law, a community undertakes an authoritative common ordering to facilitate the realisation of the common good;[30] thus, the common good comprises factors that “give reason for that individual’s collaboration with others” within a community[31]  – the ultimate factor is stability and order.

It is not suggested that this is an exhaustive answer to all the questions. However, it is submitted that the significance of such a perspective lies in its being more realistic, and avoids obscuring the reality of authority as a product of human invention, as Hobbes himself conceded. In the end, perhaps his disciple John Locke has come closer to the genuine position: “the state of Nature has a law of Nature to govern it, which obliges everyone, and reason, which is that law, teaches all mankind who will but consult it”.[32] The fact is, law and its authority is naturally formed and informed by an overarching reason, and that is the consideration of stability and order.

Mathias Cheung

King’s College London 2013

 

BIBLIOGRAPHY

AQUINAS, THOMAS, Summa Theologiae (1265-74)

AUSTIN, JOHN, Province of Jurisprudence Determined (1832)

CICERO, MARCUS TULLIUS, De Re Publica (54-51 BC)

FEINBERG, JOEL, ‘The Nature and Value of Rights’ (1970) 4 Journal of Value Inquiries 243.

FINNIS, JOHN, Natural Law and Natural Rights (2^nd ed, 2011)

HAMPTON, JEAN, ‘Democracy and the Rule of Law’ in The Rule of Law. Nomos XXXVI. edited by Ian Shapiro

HART, HERBERT LIONEL ALDOLPHUS, The Concept of Law (2^nd ed, 1997)

HOBBES, THOMAS, Leviathan (1651)

KELSEN, HANS, General Theory of Law and State (1945)

LADENSON, ROBERT, ‘In Defence of a Hobbesian Conception of Law’ (1980) 9 Philosophy and Public Affair, 134

LOCKE, JOHN, Two Treatises of Government (1689)

LUCAS, JOHN, The Principles of Politics (1966)

RAZ, JOSEPH, The Authority of Law (2^nd ed, 2011)

WOLFF, ROBERT PAUL, In Defence of Anarchism (1970)