The Ultima Ratio of law

A decisive statement such as this can be seen to invite a number of fundamental questions about the nature of law. The task of defining what constitutes law is a difficult one. Such a definition cannot be too general as to be imprecise but conversely cannot be so specific as to be meaningless for broad application. Thus the idea that law can be defined so basically by such a short statement of fact can therefore appear to be too simple to be effective. Such simplicity however can also be advantageous. The idea that law can be inextricably linked with force is one that is accepted and understood by the legal and lay world alike.

To describe the operation of a modern legal system without reference to the idea of constraint would result in an analysis that is patently lacking. Even the most basic examination of legal materials will reveal evidence of some form of coercion either express or implied. Likewise, study of the development of Western culture demonstrates the manner in which law (regardless of whether it is religious or sovereign in nature) will be based on some form of sanction. In this way we can see that fear of punishment from a higher being within secular cultures has continued into modern legal systems.

Members of a modern legal society have the good sense to instinctively recognise that breach of law can lead to some form of sanction. Thus it seems that "theory and practice coincide to give the common opinion that law necessarily enforces itself. "1 This idea, that the underlying principle of law is force receives definite support from Hans Kelsen. In his work "The Pure Theory of Law" he used the question of defining law as the start point and indeed the foundation for the construction of his scientific based analysis. Kelsen expressed the view that the law is made up of dynamic and static aspects.

The dynamic side of the law explains the process that provides for the creation and application of laws. The static aspect was Kelsen's definition, which he felt could not be reducible to moral or empirical observations. Instead Kelsen sought to produce a delineating factor that could serve to decisively distinguish valid legal norms or rules from other non-legal, social and moral norms that operate within a developed society. Accordingly, Kelsen expressed the view that the law is an organised system of coercive sanctions,

"No immanent quality, no relation to a meta-legal natural or divine norm is the reason for qualifying a specific human behaviour a delcit; but only and exclusively the fact that the positive legal order has made this behaviour the condition of a coercive act- of a sanction"2 In order to be a validly formed law, therefore it follows that a norm must have an attached sanction, which will be applied when certain conditions are evident. It is this, which will ultimately distinguish a system of "normative prescriptions"3 (a set of moral rules) from that of valid legal norms.

It is evident that there is some overlap in the areas of human behaviour that both moral and legal norms will regulate. However, Kelsen explains that it is legal norms exclusively, which will back this regulation up with the use of specified sanctions to be used by legal officials. It is also apparent that there are some legal rules that are not explicitly attached to a coercive sanction. Kelsen's response is to demonstrate the way in which such norms (in order to be legal) will necessarily be linked to others, which does in fact denote a particular sanction.

So legal norms will take either the form of a norm specifying a sanction or a norm that is linked through authorization or by dependence. This linkage enables Kelsen to maintain his position that the feature ultimately differentiating every single legal norm is the element of coerciveness. It is evident that moral norms will operate a kind of "psychic coerciveness"4, however, in contrast to a legal norm a moral order will only seek to control behaviour rather than stipulate a particular penalty.

It is likely as well that this form of coercion will primarily take the form of encouragement or acceptance; any form of negative action will only come in as a secondary approach to regulating a certain kind of behaviour. The legal norm will be directly linked to a concrete coercive sanction. Kelsen explains this connection, as a process of Imputation. In this way the official B will punish the disobedient act of A. Thus imputation is; "every connection of human behaviour with the condition under which it is commanded or prohibited in a norm"5

It is clear therefore that Kelsen sees the law as something not extrapolated from the concept of force in the form of an ordered set of sanctions. Kelsen is not alone in this view. The legal writings of John Austin offer us the same explanation, one that was considered in the early nineteenth century to be highly influential. Austin described a command theory analysis of the law. He explained legal systems as a series of commands supported by threats of force, which are issued by a sovereign.

This command theory shows the way in which obligations come to exist because disobedience will result in the regular and predictable imposition of sanctions. The simple trilogy; command, sanction and sovereign that Austin describes again points us in the direction of a legal system that is inconceivable without the application of force. Accordingly law is dependent on coercion. The State will have the monopoly on this coercion and it is this, which forms the absolute criterion of law, "A legal rule without legal coercion is a contradiction in terms, a fire which does not burn, a light that does not shine.

"6Accordingly, even if a norm is followed in everyday life it will not be classed as law until it is attached to the extra element of validly enacted political coercion. However such viewpoints have received criticism. It is argued that both Kelsen and Austin fail in their attempt to prove that the only way to appreciate the validity of law is through imputation or connection with the use of sanctions. Stanley Paulson argues that Kelsen has overlooked the possibility that society might just as likely regard a norm as binding because it best serves the aims of that particular civilization.

This is a strong point, after all it is arguable that the reason any system of law and force exists in the first place is that man recognises the need for self-preservation and maintenance of their life. This is not to say that law, as a whole will not be backed by a system of force. Instead it suggests that the stipulation of a coercive act as an essential requirement of a valid norm is too restrictive and somewhat unnecessary. Indeed, this is the main point that HLA Hart seeks to express in his analysis of Kelsen and Austin's limited definition.

Hart argues that the reasoning behind Kelsen's analysis is fundamentally weak. To justify a theory on the grounds that it allows legal norms to be distinguished from other orders of society is one that is inherently flawed. It is argued that if this were the case it would allow for the generation of various theories (apart from this strict definition requiring a stipulation), which Kelsen does not fully demonstrate as necessary. Likewise, Hart describes the command theory explained by Austin as "breathtaking in its simplicity and quite inadequate".

It is fair to point out that the presence of force is apparent in every legal system but what remains unexplained in Hart's mind is why this should be sufficient criteria for identifying valid laws. It is particularly apparent when examining Kelsen's work that the need to construct a pure and unified theory may have been somewhat overshadowed by his definition of the law. This results in a theory that, as Hart remarks, has "a pleasing uniformity of pattern but at too high a price".

It is felt that Kelsen's definition fails to account for the wide range of society that is covered by law and the way in which individuals respond to it. Certainly the legal system that operates in a society should not be explained as "the gunman situation writ large", yet this is apparently what Kelsen and Austin are doing. They fail to take account of the fact that a legal system should be infinitely more sophisticated and indeed more effective than a rule of terror. The situation within society is (according to Hart) more psychologically complex than that of a public that is ruled by fear.

"One acts because one believes one ought to do so, not because, or not merely because, one fears the consequences of acting in a contrary way"7 Instead we can see situations within society whereby individuals act for reasons other than the motivation of fear. In this way schemes to promote recycling as advocated by the Environmental Protection Agency are successful without a resort to the threat of force. Indeed, it could be argued that some individuals may be motivated to act in a criminal fashion precisely because of the risk of 'being caught'.

This is evident upon examination of the motives behind acts of mindless vandalism, for example. Such arguments advance the idea that a sanction based law system has missed out the subtle nuances of any system of laws. It is evident that within modern systems there is a distinction to be made between different types of laws. Criminal based laws do fit into the command theory pattern in that they are there to be obeyed and disobedience will result in some form of sanction. This is far from the case with all laws.

It is apparent that some types of rules are enacted in order to facilitate the actions of individuals and not to obstruct rebellious behaviour. In this way an individual may participate in any number of contractual transactions and relations within their lifetime and will not be sued or subject to any form of sanction. Likewise, a statute prescribing the manner in which a valid will should be set out, is not adequately explained by reference to sanctions as a valid law (and yet clearly it is). Argument that the possibility of nullity being expressed as a form of sanction, is quickly dismissed.