The Role of Political Arrangements in Legal Philosophy: A Foreigner’s Perspective
Makoto Usami
In the philosophy of law in the English-speaking world, there is a long tradition of general jurisprudence, in which authors seek to build up theories that are applicable to all or most legal systems across the world. Many legal positivists—and their old rivals, natural lawyers—have a tendency toward general jurisprudence. However, a close look at positivist doctrines will reveal that they are difficult to apply to some of the past and present legal systems because they are substantially influenced by particular political arrangements, such as democracy, concentrated power, and well-functioning government, which characteristically developed in Western societies. As an Asian legal philosopher who has worked on concepts and ideas originated in the English-speaking world, while paying attention to social realities in no-Western parts of the world, I illustrate how profoundly British legal positivists’ arguments have been influenced by the historical development of political arrangements in their society. My illustration casts, so argue I, doubt on the longstanding project of general jurisprudence. Based on my critical assessment of the project, I offer some suggestions on prospects of legal philosophy.
For the purpose of this paper, I single out two major theories in contemporary legal positivism. The first is the conception of legal system as a combination of primary and secondary rules, which is advanced by H. L. A. Hart. Primary rules ban certain actions including violence and theft, and secondary rules are meta-rules governing other rules. He argues that a society in which people have only primary rules encounters three types of challenge. The first is the problem of uncertainty about what an existing rule is; the second is the problem of static character, which denotes the lack of way to change out-of-date rules; the third is the problem of inefficiency, which means that there is no rule stipulating how to resolve a dispute between members of the society. To meet these challenges, secondary rules emerge: rules of recognition resolve the uncertainty problem, those of change work out the static character problem, and those of adjudication deal with the inefficiency problem. When the three forms of secondary rules are added to primary ones, people have the system of law as distinguished from the system of morality.
It is far from clear in Hart’s view, however, whether there is a legal system when people have only one or two kinds of secondary rules in addition to primary ones. As an example of such situation, in my paper I briefly describe the case of Papua New Guinean tribal societies observed even until the mid-20th century. Rules of adjudication can be arguably found in almost all historical and contemporary societies due to the inevitable occurrence of disputes and offenses, whereas rules of recognition and those of change can appear only when the codification of unwritten rules or the organization of political authority develops to a certain degree. Given such a time-gap in emergence between different types of secondary rules, the force of Hart’s theory is limited in explaining numerous historical societies and contemporary indigenous communities.
The second positivist view I want to examine is the service conception of authority proposed by Joseph Raz. His question is: what is a condition under which the law has de jure authority as opposed to de facto authority? Conditions for the de jure authority of law are formulated in three theses: the dependence thesis maintains that all authoritative directives should be based on reasons which apply to the subject of these directives; the normal justification thesis holds that the normal way of establishing one person’s authority over another involves showing that the alleged subject is likely better to comply with reasons which apply to him if he accepts the directives as biding than if he directly follows these reasons; the pre-emption thesis claims that the fact that an authority demands a particular action is a reason for it, which should replace reasons applying to the subject. If these conditions are all met by the law, as Raz asserts, then it cannot involve morality because the pre-emption thesis excludes the subject’s initial reasons including moral ones.
The force of the pre-emption thesis depends on whether the dependence thesis and the normal justification thesis are satisfied, respectively. The two theses are admittedly fulfilled in contemporary established democracies in which a responsive government largely functions very well, such as the United States, Canada, Australia, European countries, and some non-Western societies including Japan and South Korea. In contrast, this is not the case with failed states, authoritarian regimes, and fragile democracies. While the wave of democratization that has swept over many parts of the world since 1970s increased the legal systems about which the two theses are by and large met, a number of failed states remain even today.
The temporal and special boundaries of positivist doctrines throw grave doubts on the project of general jurisprudence in its current form. There might be three possible courses here. We might entirely abandon this project and turn to particular jurisprudence focusing on an individual legal system. If this course is chosen, the legacy of modern legal philosophy will be accepted and developed by only jurists living in well-functioning democratic states. The opposite direction is to attempt to make legal philosophy more multifactorial and multiform by introducing knowledge on many other legal systems into the discipline. In this direction, international scholars and students coming from other societies, as well as researchers living in these societies, are expected to play a significant role in providing relevant information and insight. Between the two routes mentioned above exists the third one: the possibility of multi-layered jurisprudence. One of its distinct levels is particular jurisprudence, at which authors study a legal system in their own society. Another is middle-level jurisprudence, at which writers explore common issues among some legal systems sharing certain political arrangements. Still another is general jurisprudence, whose ultimate goal is to cover all legal systems across the world. At middle and general levels of three-layer jurisprudence, international and foreign jurists may contribute to the enrichment of legal philosophy in the English-speaking world.
For the purpose of this paper, I single out two major theories in contemporary legal positivism. The first is the conception of legal system as a combination of primary and secondary rules, which is advanced by H. L. A. Hart. Primary rules ban certain actions including violence and theft, and secondary rules are meta-rules governing other rules. He argues that a society in which people have only primary rules encounters three types of challenge. The first is the problem of uncertainty about what an existing rule is; the second is the problem of static character, which denotes the lack of way to change out-of-date rules; the third is the problem of inefficiency, which means that there is no rule stipulating how to resolve a dispute between members of the society. To meet these challenges, secondary rules emerge: rules of recognition resolve the uncertainty problem, those of change work out the static character problem, and those of adjudication deal with the inefficiency problem. When the three forms of secondary rules are added to primary ones, people have the system of law as distinguished from the system of morality.
It is far from clear in Hart’s view, however, whether there is a legal system when people have only one or two kinds of secondary rules in addition to primary ones. As an example of such situation, in my paper I briefly describe the case of Papua New Guinean tribal societies observed even until the mid-20th century. Rules of adjudication can be arguably found in almost all historical and contemporary societies due to the inevitable occurrence of disputes and offenses, whereas rules of recognition and those of change can appear only when the codification of unwritten rules or the organization of political authority develops to a certain degree. Given such a time-gap in emergence between different types of secondary rules, the force of Hart’s theory is limited in explaining numerous historical societies and contemporary indigenous communities.
The second positivist view I want to examine is the service conception of authority proposed by Joseph Raz. His question is: what is a condition under which the law has de jure authority as opposed to de facto authority? Conditions for the de jure authority of law are formulated in three theses: the dependence thesis maintains that all authoritative directives should be based on reasons which apply to the subject of these directives; the normal justification thesis holds that the normal way of establishing one person’s authority over another involves showing that the alleged subject is likely better to comply with reasons which apply to him if he accepts the directives as biding than if he directly follows these reasons; the pre-emption thesis claims that the fact that an authority demands a particular action is a reason for it, which should replace reasons applying to the subject. If these conditions are all met by the law, as Raz asserts, then it cannot involve morality because the pre-emption thesis excludes the subject’s initial reasons including moral ones.
The force of the pre-emption thesis depends on whether the dependence thesis and the normal justification thesis are satisfied, respectively. The two theses are admittedly fulfilled in contemporary established democracies in which a responsive government largely functions very well, such as the United States, Canada, Australia, European countries, and some non-Western societies including Japan and South Korea. In contrast, this is not the case with failed states, authoritarian regimes, and fragile democracies. While the wave of democratization that has swept over many parts of the world since 1970s increased the legal systems about which the two theses are by and large met, a number of failed states remain even today.
The temporal and special boundaries of positivist doctrines throw grave doubts on the project of general jurisprudence in its current form. There might be three possible courses here. We might entirely abandon this project and turn to particular jurisprudence focusing on an individual legal system. If this course is chosen, the legacy of modern legal philosophy will be accepted and developed by only jurists living in well-functioning democratic states. The opposite direction is to attempt to make legal philosophy more multifactorial and multiform by introducing knowledge on many other legal systems into the discipline. In this direction, international scholars and students coming from other societies, as well as researchers living in these societies, are expected to play a significant role in providing relevant information and insight. Between the two routes mentioned above exists the third one: the possibility of multi-layered jurisprudence. One of its distinct levels is particular jurisprudence, at which authors study a legal system in their own society. Another is middle-level jurisprudence, at which writers explore common issues among some legal systems sharing certain political arrangements. Still another is general jurisprudence, whose ultimate goal is to cover all legal systems across the world. At middle and general levels of three-layer jurisprudence, international and foreign jurists may contribute to the enrichment of legal philosophy in the English-speaking world.