Daily Times

In his book From the Greeks to Post-modernism, Professor Wayne Morrison draws our attention to the lack of conceptual clarity about law and its difference from non-legal ideas such as force, morality, customs, sociology and religion. When I first came across this as a law student it was difficult to make sense of it as my novice mind kept asking how, if at all, knowing such differences could make me a good lawyer. But as I became an academician I found students as well as great thinkers and professionals grappling with conceptual clarity, and it is exactly here that the benefits of analytical philosophy are to be treasured.

Today, when I understand the importance of analytical philosophy it is pertinent to draw attention to two champions of analytical philosophy. One is John Austin, pupil of Jeremy Bentham, and the author of The Province of Jurisprudence Determined 1861. And the other is his arch critic, Professor H L A Hart, teacher of John Finnis and Joseph Raz, and the author of The Concept of Law 1961.

In his book, Austin explains in great detail the importance of conceptual clarity. Austin tried to convince his Oxford students that the heart of lawyering was in knowing the apt use of words. He placed much emphasis on the difference between “sovereignty” and “superiority”. For him, sovereignty was a legal term and superiority was a non-legal one. The former was used in a political context whereas the latter was used in a non-political, natural environment. In that way, it was appropriate to talk about sovereignty for a monarch but not for a teacher or a master or a parent.

In a similar vein, Hart emphasised the significance of linguistic clarity by dedicating his book to lawyers as “an essay in analytical philosophy”. He used his analytical mastery to distinguish between a legal obligation and force through his popular “being under an obligation” and “being obliged” dichotomy. Through that Hart suggested that it was possible to motivate people to comply with law without using force, and the best way to achieve that was to set an official practice of rule following that would encourage other citizens to follow their example. That is because people looked up to those in authority and felt honoured in replicating the behaviours of those who were above them.

Not only that, Hart convincingly drew distinction between “effectiveness” and “validity”. He explained that it was for citizens to comply with laws and for officials to explain what the law was. Therefore, when laws are violated, it only tells us about the defiance of citizens, but when questions of law get wrong, it tells us about the misinterpretation of law by state functionaries.

Now if you knew this beforehand you have already benefited from analytical philosophy. And if you did not like many here is an interesting question for you: have you heard about rights? Surely you have; with the celebration of the International Human Rights Day on December 10, 2019, it is unlikely that you did not. And probably, you also heard someone say that so and so is a man of principles. But I doubt if you have ever wondered about the difference between ‘right’ and ‘principle’. Well, if you have not, you should read Professor Ronald Dworkin’s Taking Rights Seriously 1977.

Unless we make analytical philosophy the business of young lawyers and teach it as a basic skill set to our legal community we will continue to face miscarriages of justice

In his work, Professor Dworkin informs us that rights operate in an “all or nothing fashion.” This means either a right presence of some entitlements or absence of others. In lingo closer to home, either a wife has a right to maintenance or she does not. On the other hand, principles have a “dimension of weight”. That is to say they give moral room to judges where rules cannot give remedy to the wrong suffered by a litigant. To this end he gives the example of Riggs v Palmer 1889.

In that case, the New York Court of Appeals was stuck with the question of how to resolve a situation in which the defendant had murdered his grandfather to be the beneficiary of his will. The court had to work out whether a murderer beneficiary could take the benefit of a will. Since the statute was silent, that is the rules had not addressed the issue, the court had moral room to say that a murderer could not be allowed to be the beneficiary of his wrong.

But if you still feel unsure you may give a closer look to the current legal debate around the construction of Article 243 (4) (d) of the Constitution of Pakistan 1973. The issue had been framed as a distinction between “extension” and “re-appointment”. If you go back to Professor Wayne’s description, it is an issue of finding out the precise law on a matter.

These distinctions, like the distinction between prorogation and dissolution of parliament drawn in Miller (No 2) (2019), tell us why analytical philosophy was important in the time of Austin and Hart, and remains so in our age where people are aware of a checklist of rights and are unaware about what they entail and where they expire. For this reason, unless we make analytical philosophy the business of young lawyers and teach it as a basic skill set to our legal community we will continue to face miscarriages of justice.

The writer is a law graduate of the University of London and teaches Jurisprudence & Legal Theory