What is law?

Primary rules of obligations are the rules that control the behaviours directly and the citizens are bound by these rules

Defining ‘Law’ was not an easier task for the philosophers and it is still a debatable issue. Although several jurists have tried to answer the question of ‘what law is’, they came out with two contending answers. These are natural law theory and legal positivism. Legal positivism is a modern answer which is developed by John Austin. He asserted that law is the command of the sovereign backed by the threat of punishment. John Austin is a 19th centurion English Jurist and developed the ‘command theory’. In his definition, he explained that there are three elements in law and these are command, duty and sanction. A command is an expression of desire which is given by a political superior to a political inferior. Although we must set up a relationship between superior and inferior before imposing any obligation, and this relationship is nothing but the power which the superior enjoys over the inferior. He then defined the term of ‘sovereign’. To him, Sovereign is a person or a body or persons whom a bulk of politically organized society habitually obeys and who does not himself habitually obey some other person or persons. This means the superior does not need to follow any order or obey any rules. In his structure of the legal system, there is no place of morality, idealism and justice. according to him, “law is aggregate of rules set by men politically superior or sovereign to men as politically subject.” He said that ‘coercion of power’ is the heart of law which is ‘sanction’. This theory is called the prescriptive theory that forces an individual to do something.

Austin’s theory was applied in Sir Leslie Stephen’s book named “Science of Ethics’ (1882). In his book, Leslie Stephen said that the British Parliament can pass any law whatsoever and that it could even pass a law ‘ordering the death of all blue-eyed babies’. As we know that British Parliament was the Supreme authority to enact any law and therefore, British Parliament could enact any law. Based on Austin’s theory, it does not matter how obnoxious and draconian law it is, the Parliament could do anything. The fact is that such law remains unenacted as a law because the idea of killing blue-eyed babies was a political issue and breaks the sense of

morality.

Although this Austinian theory is very popular in many countries at the moment, this theory is very controversial too and has been criticised by many modern jurists. Professor Herbert Lionel Adolphus Hart, another British philosopher who was a professor of jurisprudence at the University of Oxford, is one of those jurists who developed a modern theory by criticising Austin’s theory. In his analysis, he created a relationship between law, coercion and morality. He described that laws that impose duties or obligations on individuals are the ‘primary rules of obligation’, but in order for a system of primary rules to function effectively, "secondary rules" may also be necessary. These ‘secondary rules’ will allow legislators to make changes in the primary rules if the primary rules are found to be defective or inadequate.

The secondary rules of a legal system may thus include rules of recognition, rules of change, and rules of adjudication.

He more argued that the foundations of a legal system do not consist of habits of obedience, but instead consist of acceptance of an ultimate rule of recognition by which the validity of any primary or secondary rule may be evaluated. Any rule will be legally valid if a primary or secondary rule satisfies the criteria.

Primary rules of obligations are the rules that control the behaviours directly and the citizens are bound by these rules not because the state will punish them if they do not comply as Austin claims, but because simply citizens will consent to be bound by the law. For example, the law of banning polythene bag in Bangladesh was not a very hard task to execute for the government. This happened not because the citizens of Bangladesh were afraid of being punished but because they accepted the rule as we think that this is the sensible way to live in the society. e believe that avoiding polythene is better for us as well as for the whole society.

On the other hand, when the Finance Minister, Abul Mal Abdul Muhith was planning to impose a tax on the students of private universities, we have seen the protest of those students. Those protest showed that the students were not going to accept the law, although the Finance Minister was taking the Austinian approach and tried to force the student to pay tax. This Austinian approach makes the government autocratic and force people to obey the rules.

In a country like Bangladesh, the lawmakers are often trying to impose the Austinian theory on us, but they forget that the Parliament of Bangladesh is not the supreme authority neither the lawmakers are. It is very sad to articulate that sometimes they forget their Constitutional status, limitations and obligations towards us.

This is why it is very imperative to know that how the law is enacted and whether it followed the correct procedure or not. If the procedure is not correct and against the interest of mass people then, of course, the people are not bound to obey that particular law.

The writer is Lecturer, Department of Law, Notre Dame University Bangladesh, Email: [email protected]

 

What is law?

Primary rules of obligations are the rules that control the behaviours directly and the citizens are bound by these rules

Defining Law was not an easier task for the philosophers and it is still a debatable issue. Although several jurists have tried to answer the question of what law is, they came out with two contending answers. These are natural law theory and legal positivism. Legal positivism is a modern answer which is developed by John Austin. He asserted that law is the command of the sovereign backed by the threat of punishment. John Austin is a 19th centurion English Jurist and developed the command theory. In his definition, he explained that there are three elements in law and these are command, duty and sanction. A command is an expression of desire which is given by a political superior to a political inferior. Although we must set up a relationship between superior and inferior before imposing any obligation, and this relationship is nothing but the power which the superior enjoys over the inferior. He then defined the term of sovereign. To him, Sovereign is a person or a body or persons whom a bulk of politically organized society habitually obeys and who does not himself habitually obey some other person or persons. This means the superior does not need to follow any order or obey any rules. In his structure of the legal system, there is no place of morality, idealism and justice. according to him, law is aggregate of rules set by men politically superior or sovereign to men as politically subject. He said that coercion of power is the heart of law which is sanction. This theory is called the prescriptive theory that forces an individual to do something. Austins theory was applied in Sir Leslie Stephens book named Science of Ethics (1882). In his book, Leslie Stephen said that the British Parliament can pass any law whatsoever and that it could even pass a law ordering the death of all blue-eyed babies. As we know that British Parliament was the Supreme authority to enact any law and therefore, British Parliament could enact any law. Based on Austins theory, it does not matter how obnoxious and draconian law it is, the Parliament could do anything. The fact is that such law remains unenacted as a law because the idea of killing blue-eyed babies was a political issue and breaks the sense of morality. Although this Austinian theory is very popular in many countries at the moment, this theory is very controversial too and has been criticised by many modern jurists. Professor Herbert Lionel Adolphus Hart, another British philosopher who was a professor of jurisprudence at the University of Oxford, is one of those jurists who developed a modern theory by criticising Austins theory. In his analysis, he created a relationship between law, coercion and morality. He described that laws that impose duties or obligations on individuals are the primary rules of obligation, but in order for a system of primary rules to function effectively, secondary rules may also be necessary. These secondary rules will allow legislators to make changes in the primary rules if the primary rules are found to be defective or inadequate. The secondary rules of a legal system may thus include rules of recognition, rules of change, and rules of adjudication. He more argued that the foundations of a legal system do not consist of habits of obedience, but instead consist of acceptance of an ultimate rule of recognition by which the validity of any primary or secondary rule may be evaluated. Any rule will be legally valid if a primary or secondary rule satisfies the criteria. Primary rules of obligations are the rules that control the behaviours directly and the citizens are bound by these rules not because the state will punish them if they do not comply as Austin claims, but because simply citizens will consent to be bound by the law. For example, the law of banning polythene bag in Bangladesh was not a very hard task to execute for the government. This happened not because the citizens of Bangladesh were afraid of being punished but because they accepted the rule as we think that this is the sensible way to live in the society. e believe that avoiding polythene is better for us as well as for the whole society. On the other hand, when the Finance Minister, Abul Mal Abdul Muhith was planning to impose a tax on the students of private universities, we have seen the protest of those students. Those protest showed that the students were not going to accept the law, although the Finance Minister was taking the Austinian approach and tried to force the student to pay tax. This Austinian approach makes the government autocratic and force people to obey the rules. In a country like Bangladesh, the lawmakers are often trying to impose the Austinian theory on us, but they forget that the Parliament of Bangladesh is not the supreme authority neither the lawmakers are. It is very sad to articulate that sometimes they forget their Constitutional status, limitations and obligations towards us. This is why it is very imperative to know that how the law is enacted and whether it followed the correct procedure or not. If the procedure is not correct and against the interest of mass people then, of course, the people are not bound to obey that particular law. The writer is Lecturer, Department of Law, Notre Dame University Bangladesh, Email: [email protected]