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Pronounced economic differences;1. The Pedigree Thesis

1. The Pedigree Thesis

The pedigree thesis asserts that legal validity is a function of certain social facts. Borrowing heavily from Jeremy Bentham, John Austin argues that the principal distinguishing feature of a legal system is the presence of a sovereign who is habitually obeyed by most people in the society, but not in the habit of obeying any determinate human superior (Austin 1995, p. 166). On Austin’s view, a rule R is legally valid (that is, is a law) in a society S if and only if R is commanded by the sovereign in S and is backed up with the threat of a sanction. The severity of the threatened sanction is irrelevant; any general sovereign imperative supported by a threat of even the smallest harm is a law.

Austin’s command theory of law is vulnerable to a number of criticisms. One problem is that there appears to be no identifiable sovereign in democratic societies. In the United States, for example, the ultimate political power seems to belong to the people, who elect lawmakers to represent their interests. Elected lawmakers have the power to coerce behavior but are regarded as servants of the people and not as repositories of sovereign power. The voting population, on the other hand, seems to be the repository of ultimate political authority yet lacks the immediate power to coerce behavior. Thus, in democracies like that of the United States, the ultimate political authority and the power to coerce behavior seem to reside in different entities.

A second problem has to do with Austin’s view that the sovereign lawmaking authority is incapable of legal limitation. On Austin’s view, a sovereign cannot be legally constrained because no person (or body of persons) can coerce herself (or itself). Since constitutional provisions limit the authority of the legislative body to make laws, Austin is forced to argue that what we refer to as constitutional law is really not law at all; rather, it is principally a matter of “positive morality” (Austin 1977, p. 107).

Austin’s view is difficult to reconcile with constitutional law in the United States. Courts regard the procedural and substantive provisions of the constitution as constraints on legal validity. The Supreme Court has held, for example, that “an unconstitutional act is not a law; it confers no rights; it imposes no duties; it is, in legal contemplation, as inoperative as though it had never been passed.” (Norton v. Shelby County, 118 U.S. 425 (1886)). Moreover, these constraints purport to be legal constraints: the Supremacy Clause of Article VI of the Constitution states that “[t]his Constitution … shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby.”

The most influential criticisms of Austin’s version of the pedigree thesis, however, owe to H. L. A. Hart’s seminal work, The Concept of Law. Hart points out that Austin’s theory provides, at best, a partial account of legal validity because it focuses on one kind of rule, namely that which requires citizens “to do or abstain from certain actions, whether they wish to or not” (Hart 1994, p. 81). While every legal system must contain so-called primary rules that regulate citizen behavior, Hart believes a system consisting entirely of the kind of liberty restrictions found in the criminal law is, at best, a rudimentary or primitive legal system.