© Springer International Publishing Switzerland 2015Michał Araszkiewicz, Paweł Banaś, Tomasz Gizbert-Studnicki and Krzysztof Płeszka (eds.)Problems of Normativity, Rules and Rule-FollowingLaw and Philosophy Library11110.1007/978-3-319-09375-8_12
12. On Obligations, Norms and Rules
Georg-August-University, Goettingen, Germany
Dietmar von der Pfordten
What is the main form of expression in law? The classical philosophers of law like Grotius, Hobbes, Pufendorf, Achenwall, Kant, Hegel and Austin thought that commands/orders/imperatives/prescriptions are these main forms. However, non-positivistic philosophers did not pay much attention to this question because for them the aim of law was important, while the means of law, like forms of linguistic expression, were a secondary concern. The linguistic means are contingent and will be chosen freely to attain this aim. In the twentieth century positivists like Kelsen or Hart tried to identify one main type of expression to characterize the law: norms (Kelsen) or rules (Hart). In this essay I will argue that neither norms nor rules can be assumed as the main form of expression of law. Furthermore, there is no reason why we could or should identify one and only one main form of expression in law. In contrast, law can use a multitude of linguistic means. There does not even exist a limited number of expressions in law but a whole plethora: commands/orders/imperatives/prescriptions, evaluations, permissions, derogations, authorizations, rules, norms, but also descriptive speech acts like statements, definitions. We have to liberate ourselves from the false and dangerous idea that there is any reason to reduce conceptually or a priori the choice of our linguistic means to realize the aim of law. The same holds for means, which are part of our thinking like concepts, institutes, obligations, duties, propositions, values etc. Like in any other human endeavour means can be selected freely to attain the chosen aim, provided these means are effective, proportional and not forbidden because of other reasons.
KeywordsRulesNormsCommandsImperativesOrdersAimsMeansPhilosophy of Law
What is the main form of expression in law? Or put it in another way: What is the main semantic mean that law uses to attain its aims? Concerning this main form of expression in law, that is its main semantic mean, the theoretical assumptions have changed fundamentally. This change took place in two main respects.
Firstly classical philosophers of law like Grotius, Hobbes, Pufendorf, Achenwall, Kant and Hegel from the seventeenth up to the nineteenth century believed that commands/orders/imperatives/prescriptions (all these words have for our question no decisive difference in meaning2) are the prevalent form of expression in law that is the main means used in and by the law.3 Later authors like Kelsen and Hart argued instead that the main form of expression in law does not consist in commands/orders/imperatives/prescriptions, but in norms (Kelsen) or rules (Hart).
Secondly while many of the classical philosophers of law like Grotius, Pufendorf, Kant and Hegel but also Radbruch in the twentieth century didn’t put much effort on identifying one and only one of these means, authors of the positivist tradition began to lay great emphasis on the fixation of one decisive form of expression, that is one decisive mean of law: E. g. already Hobbes started his discussion of the law with the thesis that law is command not counsel (Hobbes 1991, Chap. 26, p. 183). And John Austin stated similarly to Hobbes: “Every law or rule (…) is a command” (Austin 1995, p. 21). But some pages later Austin admits that the term “laws” is also applied to objects, which have nothing of an imperative character and which are therefore not commands but declaratory laws, laws to repeal laws or imperfect laws (Austin 1995, p. 33). According to Austin the frequent habit of calling these objects “laws” shall be an improper application of the term. Nevertheless, he concedes that these improper signified laws shall be properly included into the province of jurisprudence (Austin 1995, p. 33). Therefore, he must concede that they are part of “the law” even if they are—as he thinks—not “laws”. All in all, that attempt to reform the language and to identify one and only form of laws is quite confusing and not very convincing. Nevertheless, it set the stage for all the following positivistic attempts to identify one and only one of the means of law as decisive.
What might be the reason for this fixation of positivist authors on one and only one decisive form that is specific as linguistic mean of the law? The reason is surely this: Because the positivist authors did not acknowledge some aim like the good, justice or freedom as specific aim of the law, which can be used to distinguish law from other social facts, they were forced to concentrate on specific means, especially specific semantic means like commands, norms and rules. They couldn’t accept any more the reality of means in the law, a unlimited plethora of various means: commands/orders/imperatives/prescriptions, evaluations, permissions, derogations, authorizations, rules, norms, but also declarative speech acts like statements, definitions, and finally means which are not or not purely linguistic but part of our thinking like: concepts, institutes, obligations, duties, propositions, values etc.
We will here look only at the first aspect of this fundamental change:4 At the end of the nineteenth and the beginning of the twentieth century the picture became—as was already said—radically different. In the positivist tradition Kelsen did not only hold that one form of expression is decisive for law, he also changed that characteristic mean of the law: He held that norms are the main form of expression in the law (Kelsen 1960, 3 ff.; 1979, 1 ff.). And Hart assumed—very heavily influenced by the late Wittgenstein and taking up his most important concept (Wittgenstein 1977, §§ 53, 54, 81 ff., 142 ff.)—that the concept of rules is the best way to describe the main tool of the law (Hart 1994, 12 ff.).5 Dworkin then added a new type of expressions of law, that is principles, but didn’t question Hart’s basic assumption that rules are prevalent in law (Dworkin 1977). So his critique of Hart, which is in the secondary literature often assumed to be very radical, was in reality only an addition within the new paradigm of a linguistic-means-centered and even more narrowly rule-centered understanding of the law.
This change from commands/orders/imperatives/prescriptions to norms and rules is not a mere accident but carries with it some very fundamental assumptions about the law. In my article I will try to identify some of these assumptions and discuss in the light of this result, whether the change in legal theory from a plethora of legal expressions to norms and rules as an assumed main form of expression in law is justified.
12.2 The Meaning of Commands/Orders/Imperatives/Prescriptions
Commands/orders/imperatives/prescriptions have a common core meaning. They refer respectively create obligations/duties.6 One can assume that these obligations/duties are characterized at least by the following three elements7:
of an action
which is transferred by some meaningful act.
These three elements are necessary conditions of the concepts of an obligation/duty and will be explained after the following note concerning Kant’s definition of a duty:
In the “Groundwork to the Metapysics of Morals”, Kant (1911 p. 400) says: “duty is the necessity of an action out of respect for the law”. “Law” does not mean a positive juridical act that is a positivist law here, but morals and ethics (“Sittengesetz”). We can see that the first two elements of the definition are similar to those conditions of the concept of obligation etc. stated above, whereas the third element is completely different.
Let us now turn to the first element, necessity. The necessity implied by an obligation/duty is neither a logical/mathematical/conceptual necessity, that is an a priori necessity nor an empirical necessity, that is an a posteriori necessity, brought about by causal effects. It is a sort of mental necessity, created by the person who obliges another person or herself (if one believes like Kant in duties to oneself) in an individual and social realm of meaning. It is worth keeping in mind that this necessity does not have to be realized. In the context of the concept of obligation, necessity is a mode in which all factual orders like morals, law, religion, medicine, technics, conventions etc. can be realized. Henceforth, it is assumed, that there are no logical or empirical obstacles to realize the necessity. This is stated by the well known principle “ought implies can.”
The second element, action, is also to be taken in the widest possible sense. For example, only the intentional change of a state of affairs is required for an action, while nothing is decided about the means and the way of achieving this change. These findings of both means and methods are left to the agent.8 “Action” is moreover not restricted to outer action, but also comprises inner actions, e.g. the willful change of our emotions, attitudes, opinions, evaluations, wishes, aims and so on.
12.2.3 Transfer by Some Meaningful Act
Taking only the first two conditions, not only external physical forces, but also purely internal, necessary causes of actions would constitute a form of obligation, for example the free and contingent intention of the actor to walk to the university. Therefore, we need the additional element of the transfer by some meaningful act. This meaningful act will be very often communication by others. And in the case of the law it even must be always communication by others. But conceptually required is only some sort of meaningful act. So it might be also a meaningful act within the obliged himself, e.g. if we realize that we are morally obliged by duties to oneself (if these exist).
If we go back to Kant’s definition and his third condition of acting out of the respect for the law we notice that Kant’s third prerequisite is quite narrow, as it states that the action has to find its reason in the respect for the law, it is specific for a morality that is concerned with the categorical imperative as a moral law. Yet in other normative orders, like in law, the reason to act according to the obligation does not have to be a reason coming from the norm/law itself. We are allowed to pay our taxes for whatever reasons, e.g. avoid sanctions or remain a responsible citizen. Therefore, Kant’s third requirement for the definition of “duty” cannot be assumed to be a standard requirement of the concept of obligation in general. It can at best hold for some moral duties, but not for the duties of the law. Therefore, we have to stick to the definition of obligation etc. given above. It has to be remarked that the concept of obligation/duty is very fundamental because we find it also in all versions of the standard systems of deontic logic and legal logic (Joerden 2005; Weinberger 1989, 232 ff.).
Commands/orders/imperatives/prescriptions and their meaning, that is obligations/duties, can be general or singular. E.g. a statute is a general order and creates a general obligation, while a judicial judgment is normally a singular order and creates normally a singular obligation.
H. L. A. Hart has (mis-)understood Austin’s use of the concept of command only in the sense of a singular order when he constructed his gunman-example and argued on the ground of this example against Austin (Hart 1994