Introduction

The chapters of this book were written separately during a period of great political controversy about what law is and who must obey it and when. During the same period the political attitude called 'liberalism', once the posture of almost all politicians, seemed to lose a great deal of its appeal. The middle-aged blamed liberalism for permissiveness and the young blamed it for rigidity, economic injustice and the war in Vietnam. Uncertainty about law reflected uncertainty about a conventional political attitude.

The various chapters define and defend a liberal theory of law. They are nevertheless sharply critical of another theory is that is widely thought to be a liberal theory. This theory has been so popular and influencial that I shall call it the ruling theory of law. The ruling theory has two parts,  and insists on their independence. The first is a theory about what law is; in less dramatic language it is a theory about the necessary and sufficient conditions for the truth of a proposition of law. This is the theory of legal positivism, which holds that the truth of legal propositions consists in facts about the rules that have been adopted by specific social institutions, and in nothing else. The second is a theory about what the law ought to be, and how the familiar legal institutions ought to behave. This is the theory of utilitarianism, which holds that law and its institu­tions should serve the general welfare, and nothing_else. Both parts of the ruling theory derive from the philosophy of Jeremy Bentham.

The critical portions of these essays criticize bothparts of the theory, and also criticize the assumption that they are independent of one another. The constructive portions emphasize an idea that is also part of the liberal tradition, but that has no place in either legal positivism or utilitarianism. This is the old idea of individual human rights. Bentham called that idea 'nonsense on stilts'.

2.

A general theory of law must be normative as well as conceptual. Its normative part must treat a variety of topics indicated by the following catalogue. It must have a theory of of adjudication, and of compliance; these three theories look at the normative questions of law from the standpoints of a lawmaker, a  judge,  and an ordinary citizen. The theory of legislation must contain a theory of legitimacy, which des­cribes the circumstances under which a particular person or group is entitled to make law, and a theory of legislative justice, which describes the law they are entitled or obliged to make. The theory of adjudication must also be complex : it must contain a theory of controversy, which sets out standards  that judges should use to decide hard cases at law, and a theory of jurisdiction, which explains why and when judges, rather than other groups or institutions, should make the decisions required by the theory of controversy. The  theory of compliance must contrast and dis­cuss  two roles. It must contain a theory of deference, which discusses the nature and limits of the citizen's duty to obey the law in different forms of state, and under different circumstances, and a theory of enforcement, which identifies the goals of enforcement and punishment, and describes how officials should respond to different categories of crime or fault.

A general theory of law will comprehend subjects that do not fall within any of these categories, and a topic that falls within one may fall within others as well. The politically sensitive issue of constitutionalism is, for example, an issue in the theory of legitimacy. Why should the elected representatives of the majority ever be disabled from enacting law that seems to them fair and efficient? But a related question is also an issue in the conceptual part of a legal theory. Can the most fundamental prin­ciples of the constitution, which define who is competent to make law and how, themselves be considered as part of the law ? That conceptual question plainly bears on other questions of legitimacy and jurisdiction. If the political principles embedded in the constitution are law, then the title of judges to decide what the constitution requires is, at least prima facie, confirmed; if these principles are law in spite of the fact that they are not the product of deliberate social or political decision, then the fact that law can be, in that sense, natural argues for the constraint on majority power that a constitution imposes. Both the conceptual question and the questions of jurisdiction and legitimacy bear in obvious ways on the theory of compliance; they bear, for example, on the issue of whether a dissident can plausibly or even coherently say that his idea of what the fundamental law of the constitution requires may be superior to that of the legislature and the judges.

The interdependencies of the various parts of a general theory of law are therefore complex. In the same way, moreover, a general theory of law will have many connections with other departments of philosophy. The normative theory  will be embedded in a more general political and moral philosophy which may in turn depend upon philosophical theories about human nature or the objectivity of morality. The conceptual part will draw upon the philosophy of language and therefore upon logic and metaphysics. The issue of what propositions of law mean, and whether they are always true or false, for example, establishes immediate connec­tions with very difficult and controverted questions in philosophical logic. A general theory of law must therefore constantly take up one or another disputed position on problems of philosophy that are not distinctly legal.

3.

Bentham was the last philosopher in the Anglo-American stream to offer a theory of law that is general in the way just described. One may find in his work a conceptual part and a normative part of a general theory of law, and one may find, within the latter, distinct theories of legitimacy, legislative justice, jurisdiction and controversy, all suitably related under a political and moral theory of utilitarianism and a more general meta­physical theory of empiricism. Each component of this general theory has been developed and refined, by different academic lawyers, but the ruling theory of law, in both British and American law schools, remains a Benthamite theory.

The conceptual part of his theory - legal positivism - has been much improved. The most powerful contemporary version of positivism is that proposed by H. L. A. Hart, and it is Hart's version which is criticized in this book. The normative part of Bentham's theory has been much refined through the use of economic analysis in legal theory. Economic analysis provides standards for identifying and measuring the welfare of the individuals who make up a community (though the nature of these standards is much in dispute) and holds that the normative questions of a theory of legitimacy, legislative justice, jurisdiction and controversy, as well as deference and enforcement, must all be answered by supposing that legal institutions compose a system whose overall goal is the promo­tion of the highest average welfare among these individuals. This general normative theory emphasizes what earlier versions of utilitarianism often neglected : that this overall goal might be advanced more securely assigning different types of questions to different institutions according to some theory of institutional competence, rather than by supposing that all institutions are equally able to calculate the impact on overall welfare of any particular political decision.[1]

Since legal positivism and economic utilitarianism are complex doc­trines, the ruling theory of law has many antagonists many of which are equally antagonistic to each other. The ruling theory is opposed, for example, by various forms of collectivism. Legal positivism assumes that law is made by explicit social practice or institutional decision; it rejects the more romantic and obscure idea that legislation can be the product of an implicit general or corporate will. Economic utilitarianism is also (though only to a degree) individualistic. It sets as a standard of justice in legislation, the goal of overall or average welfare, but it defines overall welfare as a  function of the welfare of distinct individuals, and steadily opposes the idea that a community has, as a distinct entity, some inde­pendent interest or entitlement.

  The ruling theory is also criticized because it is rationalistic. It teaches, in its conceptual part, that law is the product of deliberate and purpose­ful decision by men and women planning, through such decisions, to change the community through general obedience to the rules their deci­sions create. It commends, in its normative part, decisions based on such plans, and it therefore supposes that men and women in political office can have the  ,skill, knowledge and virtue to make such decisions effec­tively under conditions of considerable uncertainty in highly complex communities.

Some of those who criticize the individualism and rationalism of the ruling theory represent what is often called, in political discussions, the 'left'.  They believe that the formalism of legal positivism forces courts to substitute a thin sense of procedural justice, which serves conservative social policies, for a richer substantive justice that would undermine these policies. They believe that economic utilitarianism is unjust in its consequences, because it perpetuates poverty s to efficiency, and deficient in its theory of human nature, because it sees individuals as self-interested atoms of society, rather than as inherently social beings whose sense of community is an essential part of their sense of self.

Many other critics of the ruling theory, on the other hand, are associated with the political right.[2]1 They follow the curious philosophy of Edmund Burke, who has become newly popular in American political theory, and believe that the true law of the community is not simply  the deliberate decisions that legal positivism takes to be exclusive, but also the diffuse customary morality that exercises a great influence on these decisions. They believe that economic utilitarianism, which insists that deliberate decisions contrary to conventional morality can improve the community's welfare,  is hopelessly optimistic. They argue, with Burke, that the rules best suited to promote the welfare of a community will emerge only from experience of that community, so that more trust_ must be put in established social culture than- in the social engineering of utilitarians who suppose that they know better than history.

Neither of these very different critiques of the ruling theory challenges one specific feature of that theory I mentioned, however.  Neither argues that the ruling theory is defective because it rejects that individuals can have rights against the state that are prior to the rights created by explicit legislation. On the contrary, opposition from the left and the right is united in condemning the ruling theory for its excessive concern, as they take it to be, with the fate of individuals as individuals. The of individual rights, in the strong sense in which that idea is defended in this, book, is for them simply an exaggerated case of the disease from which the ruling theory already suffers.

4

That idea has, of course, been advanced by many different philosophers in many different forms, but the ruling theory rejects the idea in any form. Legal positivism rejects the idea that legal rights can pre-exist any form of legislation; it rejects the idea, that is, that individuals or groups can have rights in adjudication other than the rights explicitly provided in the collection of explicit rules that compose the whole of a community's law. Economic utilitarianism rejects the idea that political rights can pre-exist legal rights; that is, that citizens can justifiably protest, a legislative decision on any ground except that the decision does not in fact serve the general welfare.

Much of the ruling theory's opposition to natural rights is the conse­quence of an idea Bentham promoted : that natural rights can have no place in a respectably empirical metaphysics. Liberals are suspicious of ontological luxury. They believe that it is a cardinal weakness in various forms, of collectivism that these rely on ghostly entities like collective wills or national spirits, and they are therefore hostile to any theory of natural rights that seems to rely on equally suspicious entities. But the idea of individual rights that these essays defend does not presuppose any ghostly forms; that idea is, in fact, of no different metaphysical character from the main ideas of the ruling theory itself. It is, in fact, parasitic on the dominant idea of utilitarianism which is the idea of a collective goal of community as a whole.

Individual rights are political trumps held by individuals. Individuals have rights ,when, for some reason, a' collective goal is not a sufficient justification for denying them what they wish, as individuals, to have or to do, or not a sufficient justification for imposing some loss or injury upon them. That characterization of a right is, of course, formal in the sense that it does not indicate what rights people have or guarantee, indeed, that they have any. But it does not suppose that rights have some special metaphysical character and the theory defended in these essays therefore departs from older theories of rights that do rely on that supposition.

The theory requires a vocabulary for making distinctions among the different types of rights individuals have. A vocabulary is proposed in Chapter 4. The most important of the distinctions made there is the distinction between two forms of political rights : background rights, which are rights that hold in an abstract way decisions taken by the community or the society as a whole, and more specific institutional rights that hold against a decision made by a specific institution. Legal rights may then be identified as a distinct species of a political right, that is, an institutional right to the decision of a court in its adjudicative.
function.

Legal positivism, in this vocabulary, is the theory that individuals have legal rights only insofar as these have been created by explicitly political decisions or explicit social practice. That theory is criticised in Chapters 2 and 3 as an inadequate conceptual theory of law. Chapter 4. suggests an alternative conceptual theory which shows how individuals may have legal rights other than those created by explicit decision or practice; that is, that they may have rights to specific adjudicative decisions even in hard cases when no explicit decision or practice requires a decision either way and the argument of  Chapter 4 provides a bridge between the conceptual the normative parts of the alternate theory. It provides a  normative theory of adjudication, which emphasizes the distinction between arguments of principle and policy, and defends the claim that judicial decisions based  on arguments of  principle are compatable with democratic principles. Chapter 5 applies that normative theory of adjudication to the central and politically important cases of constitutional adjudication. It uses the theory to criticize the debate between what is called judicial activism and restraint in constitutional law, and defends the propriety of judicial review limited to arguments of principle, even in politically controversial cases.

Chapter 6 discusses the foundation of a theory of legislative rights. It argues, through an analysis of John Rawls's powerful and influential theory of justice, that our intuitions about justice presuppose not only that people have rights but that one right among these is fundamental and even axiomatic. This most fundamental of rights is a distinct con­ception of the right to equality, which I call the right to equal concern and respect.

Chapters 7 and 8 defend a normative theory of compliance. Chapter 7 considers cases in which an individual's legislative, though not necessarily his legal, rights are in dispute. It does not argue for any particular set of individual rights, but only for certain consequences of conceding that individuals have some legislative rights distinct from and prior to their legal rights. This theory of compliance does not, therefore, rest on any presumptions about the character of the background and legislative rights people actually have; it does not presuppose even the abstract conclusion of Chapter 6. It therefore fulfills an important requirement of any poli­tical theory that gives a prominent place to rights : it provides a theory of compliance under conditions of uncertainty and controversy about what rights people actually have.

Chapter 8 extends the analysis to cases of uncertainty and controversy about legal rights. It takes up two important and often neglected questions of a theory of compliance : What are the background rights and responsibilities of a citizen when his constitutional rights are uncertain, but he genuinely believes that the government has no legal right to compel him to do what he believes is wrong? What are the responsibi- lities of officials who believe that he is wrong but sincere in his opinion of what the law is?

Chapter 9 returns to the right to concern and respect described in Chapter 6. It shows how that conception of equality may be used to interpret the famous Equal Protection Clause of the Fourteenth Amend- ment to the United States Constitution, and how, used in that way, the conception confirms our intuitions about racial discrimination and sup- ports the politically controversial practice called reverse discrimination.

Chapters 10, 11 and 12 consider the competing claims of a different right that has also been considered by many political philosophers to be the most fundamental of political rights; this is the so-called right to liberty, which is often thought not only to be a rival to the right to equality, but to be, in at least some cases, inconsistent with that right. Chapter 12 argues that there is no right to liberty as such; indeed that the idea of such a right is itself a confusion. It does not reject the idea that individuals have rights to certain distinct liberties, like the right to personal moral decisions discussed in Chapter 10, or the right to the liberties described in the Constitutional Bill of Rights. On the contrary, Chapter 12 argues that these conventional rights are derivative, not from a more abstract general liberty as such but from the right to equality itself. The essays therefore contradict the popular and dangerous idea that individualism is the enemy of equality. That idea is the common mistake of libertarians who hate equality and egalitarians who hate liberty; each attacks his own ideal under its other name.