Sean Coyle

The Nature of Law is an insightful and engaging book that challenges almost every touchstone of modern jurisprudence. Proceeding from the thesis that laws must be understood after all as commands rather than rules, the book defends the thesis that law itself must be understood by reference to the common good. The view that the law consists of commands does not take us back to the Austinian jurisprudence that preceded H. L. A. Hart’s (the author maintains that John Austin’s theory is indeed radically defective), but challenges the modern consensus that Hart’s conception of law as a system of rules is really the advance it is supposed to be.

The book’s central sections deal with the question of whether there is an obligation to obey the law, not (as Joseph Raz maintains) merely because the law consists of reasons for action that apply to the subject anyway (P. 199), but because the law secures the common good in ways that cannot be successfully contemplated or advanced by multitudes of individuals, even if those individuals steadily wish to act for the common good. This thesis is linked to that of command, for the author argues that commands generate genuine obligations, and do not simply, as Hart suggested, oblige (Pp. 93-96, 204). In fact, it is Hart who runs into trouble, for his argument is based on the idea that rules are to be theorised as practices, but these can be shown to lack a normative element.

Here, the author seems to run aground, for Hart in this sense follows the lead of Aristotle and Aquinas, in supposing that a function of law is to coerce un-virtuous people to act virtuously until they come to love virtue and act for its sake. The un-virtuous can be described as engaging in a practice, yet continue in that practice only in order to avoid punishment, or merely ‘conform’, and not because they have ‘internalised’ the values that structure the practice. But practices can be moral, too: the virtuous also engage in a practice (in extensional terms, the very same practice as that of the un-virtuous), but they do so because they deem the practice to be good, even if only good on the whole. Furthermore, is not ‘acceptance’ normative? (P. 62.) Whatever the relative merits of commands vs. rules, the central thesis of the book is, to repeat, that law in the proper sense is orientated to the common good. Individual laws that do not serve the common good “remain law, but [weigh] down the system and potentially erode its legitimacy” (P. 15). It is unfortunate that the book does not offer a finely calibrated account as to the various ways in which a legal rule erodes the legitimacy of the system, the significance of these, and at what point legitimacy disappears under the weight of evil laws. The only worked-out example given is that of Nazi law, which is well-trodden and too well-known to offer any substantial new insights (P. 140).

Having progressed from the controversy of commands vs. rules, the central chapters of the book concern justification (Ch 3) and authority (Ch 4). Both of these chapters critically discuss Raz’s jurisprudence, challenging his ‘service’ conception of authority. Chapter 4, which is the longest in the book at over 90 pages (Pp. 185-278), is the one about which I have least to say. It is somewhat repetitious and too long for even the most eager reader to maintain focus. But one thesis did stand out. The author asserts, like John Finnis and Robert George, that the law, in seeking the common good, consists in settling coordination problems (P. 196). This established thesis should be given up. For the foundational projects of the law in fact pertain to justice (e.g., in accidental and intentional harms, in transactions and rights of ownership) and in fairness (procedures and due process, delegated authority and legislation, and so on), and neither of these projects essentially aims at coordination.

There is much else in the book that is of interest, but I have confined myself here to what is most original in the author’s argument. I want to close this review by picking out a single sentence that has, in fact, great significance for the author’s project, implying as it does a methodological assumption. Stating that we need an account of why particular standards count as law, he asserts: ‘Any analysis requires a unitary definition at some stage’ (P. 131). Such a viewpoint, which drives many legal theories and not just the author’s, could itself be challenged on the ground that the concept of ‘law’ is one structured by family resemblance at most, there not being a single archetype or shining example against which all legal systems or practices are judged (for indeed we can ponder whether all law-practices are systematic above and beyond being consistent). The very idea that a unitary definition is possible in legal theory is one that should not be automatically assumed.

In conclusion, there is much of interest in this book, to agree with or dispute. It is a testament to the book’s originality that either of these eventualities will be extremely profitable.