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Published : June 22, 2011 | Author : sujay_ilnu
Category : Jurisprudence | Total Views : 20259 | Rating :

Sujay Dixit, BA.LL.B(Hons in Corporate Law) Institute of Law,Nirma University

Austin, Hart and Kelson on Sanction as an integral part of law

The term “sanction” is derived from Roman law. Sanction was originally that part of the statute which established a penalty or made other provisions for its enforcement. In the ordinary sense, the term sanction means mere penalty It can also be some motivating force or encouragement for the purpose of better performance and execution of laws.

The term “sanction” is derived from Roman law. Sanction was originally that part of the statute which established a penalty or made other provisions for its enforcement. In the ordinary sense, the term sanction means mere penalty It can also be some motivating force or encouragement for the purpose of better performance and execution of laws.

Sanction and punishment

A sanction can be distinguished from punishment .Sanction is the genus of which punishment is the species. Sanction consists in the application of the physical force of the state for the enforcement of law. Punishment or penalty is an evil inflicted upon a wrongdoer. Punishments are pre-eminently the sanction of criminal law. They are ultimate sanctions. The term sanction is wider than punishment. It is one of the kinds of sanction. There are sanctions other than punishments Civil sanction has compensation as their object.

Sanction and liability
Sanction is a conditional evil to be incurred by disobedience of law. Law is “the state of exposedness to the sanctions of the law.”

Sanction of nullity

Sanction of nullity is a civil sanction which regulates the rules of evidence and procedure. It consists in a refusal by the court to help a party who has disregarded the law. A document which requires to be registered will not be given effect if it is not so registered.

There is a controversy on the point whether sanction is an essential element of the law or not.The majority of the jurists who follow Austin are of the view that sanction is an indispensable element of law.

The Historical Evolution Of theories of Sanction
The Roman province believed in the dictas in New Testament, which expressed the thought that the supreme power actually has received divine sanction by being permitted to prevail, that it has a rightful claim to obedience. These dicta are an evidence of the sentiments of roman provincial under the earlier empire .The prevalent answer to any question about the source of legal sovereignty and the moral claims of a sovereign to the obedience of its subjects was that god had appointed certain powers to govern the world and to resist would be a sin. It was admitted that there were two sovereigns and each was absolute-The pope in spiritual and the emperor in temporal matters.

However, late around, the sixteenth century various changes took place which shook the existing fabric of thought and belief. These included the crumbling of feudal structure of the society, pope's authority being met with a revolt and half the Europe was taken from his sway, a new sprit of inquiry, skeptical in its tendencies sprang up in Europe ( a characteristic of renaissance). Thus the traditional doctrine regarding the basis of authority which had been sufficient for the middle ages had faded, morals began to be separated from theology, people started questioning the basis of a kings' claim to obedience. A new explanation of the nature of political society was now needed and from this time onwards new theories of state power began to appear.

John Austin was a noted British jurist and published extensively concerning the philosophy of law and jurisprudence. His publications had a profound influence on English jurisprudence. They include The Province of Jurisprudence Determined (1832), and Lectures on Jurisprudence. John Austin is best known for his work developing the theory of legal positivism. He attempted to clearly separate moral rules from "positive law."Austin was greatly influenced in his utilitarian approach to law by Jeremy Bentham. Austin took a positivist approach to jurisprudence; he viewed the law as commands from a sovereign that are backed by a threat of sanction. In determining 'a sovereign', Austin recognized it as one who society obeys habitually.

Austin on Sanction
According to Austin “It is only conditional evil that duties are sanctioned or enforced. It is the power and the purpose of inflicting eventual evil and not the power and purpose of imparting eventual good which gives to the expression of a wish the name of the command.

Herbert Lionel Adolphus Hart was an influential legal philosopher of the 20th century. He was Professor of Jurisprudence at Oxford University and the Principal of Brasenose College, Oxford. He authored The Concept of Law and made major contributions to political philosophy. Hart's most famous work is The Concept of Law, first published in 1961, and with a second edition (including a new postscript) published posthumously in 1994. The book emerged from a set of lectures that Hart began to deliver in 1952, and it is presaged by his Holmes lecture, Positivism and the Separation of Law and Morals delivered at Harvard Law School. The Concept of Law developed a sophisticated view of legal positivism. Among the many ideas developed in this book are:

* A critique of John Austin's theory that law is the command of the sovereign backed by the threat of punishment.
* A distinction between primary and secondary legal rules, where a primary rule governs conduct and a secondary rule allows of the creation, alteration, or extinction of primary rules.
* A distinction between the internal and external points of view of law and rules, close to (and influenced by) Max Weber's distinction between the sociological and the legal perspectives upon law.
* The idea of the Rule of Recognition, a social rule that differentiates between those norms that have the authority of law and those that do not.
* A late reply (published as a postscript to the second edition) to Ronald Dworkin, who criticized legal positivism in Taking Rights Seriously (1977), A Matter of Principle (1985) and Law's Empire (1986).

Hart on Sanction
According to Hart, “rules are conceived and spoken of as imposing obligations when the general demand for conformity is insistent and the social pressure brought to bear upon those who deviate or threaten to deviate is great.”According to Hart, legal rules are primarily enforced through the threat and actual use of “physical sanctions” by contrast, the typical form of moral pressure “consists in appeals to the respect for the rules, as things important in themselves, which is presumed to be shared by those addressed.”Although this point is an important and illuminating one, Hart puts it in a somewhat misleading way. In the first place, those appeals to conscience which Hart associates with the enforcement of morals also play an important role in the enforcement of the rules of a legal system. This is especially true with respect to self-enforcement, where obedience to the law is often based upon the belief that one has a moral obligation to do as the law commands. That the appeal here is to a moral belief, or to one’s conscience, does not alter the underlying fact that in this situation the appeal operates as an instrument of law enforcement. More importantly, there is nothing absurd in the idea of a moral system which stipulates that certain classes of wrongdoers ought to be punished by the application of physical sanctions. The fact that the use of such sanctions for a moral purpose may itself be a legal offense does not invalidate this point.

Moral system may prescribe physical punishment for those who break its rules, so long as the imposition of such punishment is effectively prohibited by the officials responsible for enforcing an independent system of rules (through the use of physical sanctions if necessary) it will remain a moral system. It is just at the point where this disability is overcome that it is no longer correct to speak of the rules in question as moral rules, for to the extent that such rules are effectively enforced by physical sanctions they are laws.

If law differs from morality with respect to the type of sanctions which it employs, it also differs, according to Hart, with respect to the mode of their administration. Typically, moral sanctions take the “form of a general diffused hostile or critical reaction.”By Contrast, legal sanctions are typically administered by a centralized official organ which possesses the exclusive authority to punish violations of the law.
Thus, when an individual breaches a moral duty any other member of the moral community to which he belongs may impose the appropriate. Of course, the larger society may simply ignore the sect’s use of physical sanctions. So long as the larger society is to prevent the sect from using physical sanctions, it is proper to speak of the sect as being authorized to use such sanctions; when the larger society is no longer able to prevent the sect from using physical sanctions, even though it continues to claim that the sect is merely one of its organs, the sect will in reality have acquired the status of a legal system. So long as the larger society ignores the sect’s use of sanctions, its ability to prevent the sect from using them must remain in doubt. This doubt is removed only when the two orders are brought into actual conflict.

He studied law at the University of Vienna, taking his doctorate in 1906. In 1911, he achieved his habilitation(license to hold university lectures) in public law and legal philosophy and published his first major work, Main Problems in the Theory of Public Law .In 1919, he became full professor of public and administrative law at the University of Vienna. He established and edited the Journal of Public Law in Vienna. At the behest of Chancellor Karl Renner, Kelsen worked on drafting a new Austrian Constitution, enacted in 1920. The document still forms the basis of Austrian constitutional law. Kelsen was appointed to the Constitutional Court, for a life term. In 1925, he published General Theory of the State in Berlin. Kelsen accepted a professorship at the University of Cologne in 1930. When the Nazis came to power in Germany in 1933, he was removed from his post and moved to Geneva, Switzerland and taught international law at the Graduate Institute of International and Development Studies from 1934 to 1940.In 1934, he published the first edition of Pure Theory of Law . In Geneva he became more interested in international law. In 1936–1938 he was professor at the German University in Prague. In 1940, he moved to the United States, giving the Oliver Wendell Holmes Lectures at Harvard Law School in 1942 and becoming a full professor at the department of political science at the University of California, Berkeley in 1945. During those years, he increasingly dealt with issues of international law and international institutions such as the United Nations. In 1953-54, he was visiting Professor of International Law at the United States Naval War College. Kelsen's main practical legacy is as the inventor of the modern European model of constitutional review - first used in the Austrian First Republic, then in the Federal Republic of Germany, Italy, Spain, Portugal, and later many countries of Central and Eastern Europe. The Kelsenian court model sets up a separate constitutional court, which may have sole responsibility over constitutional disputes within the judicial system. This is different from the system usual in common-law countries, including the USA, in which courts of general jurisdiction from the trial level up to the court of last resort frequently have powers of constitutional review.

Kelson on Sanction
Kelsen insists that morality is no part of law. Law has no moral content: there are no mala in se but only mala prohibita delict is not outside law or a rejection of law but is within law as the condition for imposing a sanction. Nor is law as such intrinsically good: to hold that it is, subjects the positive legal order to a new iusnaturalism and thereby provides an ‘uncritical legitimation’ of the order. Indeed, if one were to give up ‘the solidly fixed frontier over against the concepts of morality and politics’, and count moral and political principles and policies into law, one would have to count in every factor influencing the creation of law—including the interests of party and class.

Kelsen extends the concept of sanction beyond the concept of reaction to specific behaviour, to include reactions to circumstances that the state finds undesirable—arrest on suspicion, protective custody, internment, expropriation of property in the public interest. All these, even committal to an extermination camp, ‘cannot be considered as taking place outside the legal order’. But the concept of a law of law is not extended likewise. Here Kelsen is tense. Within his philosophical positivism, on one side his strong sense of morality and justice is subject to an insistence that justice be relative, a justice of tolerance which among other things is a social precondition for the practice of science. However, he identifies and subscribes to the modern appearance of law as mere technique. He characterises law as ‘a specific social technique for the achievement of ends determined by politics’ and the legal scientist as a mere ‘technician’, not concerned with the political aims of the legal order being serviced. This position is vulnerable to the Frankfurt School’s critique of philosophical positivism’s privileging of technical or instrumental rationality. The ‘scientific’ approach is privileged as ‘objective’, while the practically rational reasons for adopting and pursuing it are always-already removed from argument by characterising all evaluation as merely emotional. In this perspective, Kelsen privileges in the name of science the instrumentalism whose extreme consequences as law he abhors and of which he was nearly a victim.

Contradictions between the theories of all the three
Hart Criticism of Austin’s theory-
The starting point for the discussion is Hart's dissatisfaction with John Austin's "Command Theory": a jurisprudential concept that holds that law is command backed by threat and is meant to be ubiquitous in its application. Hart likens Austin's theory to the role of a gunman in a bank and tries to establish the differences between the gunman's orders and those made by law. (For instance, the gunman forces us to obey but we may not feel inclined to obey him. Presumably, obedience to the law comes with a different feeling.)Hart identifies three such important differences: content, origin, and range. In terms of content, not all laws are imperative or coercive. Some are facilitative, allowing us to create contractsand other legal relations.

Austin believed that every legal system had to have a sovereign who creates the law (origin) whilst remaining unaffected by it (range), such as the bank scene's gunman, who is the only source of commands and who is not subject to other's commands. Hart argues that this is an inaccurate description of law, noting that laws may have several sources and legislators are very often subject to the laws they create.

Hart argues that the command theory cannot account for the variety of laws in a legal system: In particular, legal systems contain “power-conferring” rules as well as “duty-imposing” and “liberty conferring” rules He argues that the command theory cannot account for these distinct power-conferring rules ..
And criticizes arguments of Austin and Kelsen that attempt to assimilate them into the model of commands or coercive norms
A “power”, as Hart uses the term, is an ability to bring about a legal change intentionally. Examples are: abilities to make a will, to enter a contract, to make a by-law, to enter a judgment
• Note:
Rules can confer powers: eg the power to make a will.Rules can also restrict an existing power:
· By limiting the persons who can exercise it
· By limiting the manner in which it must be exercised
· By limiting the circumstances under which it can be exercised-

Austin attempted to explain rules that limit powers by saying nullity is a “sanction” Hart points out nullity is merely a logical consequence of failure to exercise a power:
· It is automatic, not a sanction imposed thereafter
· The person who fails is not a wrongdoer
· The nullity may not be unwelcome

Kelson’s theory criticism
In this respect, there is some affinity with John Austin's 'command' theory of law. But Kelsen's approach is quite different from Austin's. Austin finds the defining characteristic of law on the plane of the signifier, in imperative utterances. Kelsen has almost no interest in the signifier but focuses on the signified: a 'norm' is an utterance that, whatever its grammatical form, has the meaning 'ought (Sollen)'.Austin and Kelsen also differ in that, for Kelsen, legal norms are addressed primarily to officials. Officials are directed to apply sanctions to individuals when the individuals' behaviour does not conform to a pattern specified in the norm. It is anticipated that individuals, in choosing how they will behave, will take into account the possibility that an official will apply the sanction. In that way, norms and the orders to which they belong can be effective. However, most if not all jurists now accept H.L.A. Hart's point in The Concept of Law, though directed principally against Austin, that not all legal norms are coercive - some, and some of the most important, are facilitative. The Pure Theory of Law can accommodate this by accepting that what matters most is not whether particular legal norms are coercive but whether, by containing coercive norms, the legal order as a whole is coercive - which Hart does not deny.

Hart draws a distinction between a social habit (which people follow habitually but where breaking the habit does not bring about opprobrium - going to the cinema on Thursday for example) and a social rule (where breaking the rule is seen as wrong). We feel in some sense bound by social rules and laws frequently appear to be types of social rule.There are two perspectives to this: the external aspect, which is the independently observable fact that people do tend to obey the rule with regularity, and the internal aspect which is the feeling by an individual of being in some sense obligated to follow the rule, otherwise known as the critical reflective attitude. It is from this internal sense that the law acquires its normative quality. The obedience by the populace of a rule is called efficacy. No law can be said to be efficacious unless followed by the majority of the populace. Though an average citizen in a modern state with a developed legal system may feel the internal aspect and be compelled to follow the laws, it is more important for the officials of the society/peoples to have the internal aspect since it is up to them to follow the constitutional provisions which, if they wish, could ignore without accountability. Yet, the officials must use the internal aspect and accept the standards as guiding their behaviour in addition to also guiding the behaviour of other officials. But laws are more than rules of conduct. Laws can be divided up into two sorts: primary rules (rules of conduct) and secondary rules (rules addressed to officials and which set out to affect the operation of primary rules). Secondary rules deal with three problems: first the problem of uncertainty about what the law is (the secondary rule for this dilemma is called the rule of recognition and states the criteria of validity of a law), second the problem of rigidity of rules (which requires rules of change allowing laws to be varied), and third the problem of how to resolve legal disputes (from which rules of adjudication arise). A legal system is "the union of primary and secondary rules."Lastly, Hart lets us know that laws are much broader in scope than coercive orders, contrary to the "command theory" of Austin. Frequently laws are enabling and so allow citizens to carry out authoritative acts such as the making of wills or contracts which have legal effect.

# V.D.Mahajan.Jurisprudence and Legal Theory,(Lucknow:Eastern Book Company)2006 p.45.
# V.D.Mahajan.Jurisprudence and Legal Theory,(Lucknow:Eastern Book Company)2006 p.46.
# V.D.Mahajan.Jurisprudence and Legal Theory,(Lucknow:Eastern Book Company)2006 p.46.
# V.D.Mahajan.Jurisprudence and Legal Theory,(Lucknow:Eastern Book Company)2006 p.47.
# Available at http://legalserviceindia.com/article/l213-Austins-theory-of-Sovereignty-in-modern-India-and-Pakistan.html visited on April 29,2011.
# Available at http://en.wikipedia.org/wiki/John_Austin_(legal_philosopher) visited on May 2,2011.
# Available at http://en.wikipedia.org/wiki/H._L._A._Hart visited on May 8,2011.
# Anthony Townsend Kronman .Hart,Austin and the Concept of Legal Sanction(Yale Law School) 1975.
# Available at http://en.wikipedia.org/wiki/Hans_Kelsen visited on May 7,2011.
# IAIN STEWART. The Critical Legal Science of Hans Kelsen,(1990) 17(3) Journal of Law and Society 273-308
# Available at http://en.wikipedia.org/wiki/The_Concept_of_Law visited on May 3,2011.
# Available at http://en.wikipedia.org/wiki/The_Concept_of_Law visited on May 3,2011.

Authors contact info - articles The author can be reached at: sujay_ilnu@legalserviceindia.com

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