Motivaciones de acceso a los microcréditos

I

This chapter deals with the concept of sovereignty and the normativity of law in Bentham’s thought. The analysis is inspired by a close reading of Bentham’s early works. The jurisprudential claims that are advanced here form the foundation for the remainder of the thesis. The analysis of sovereignty will underpin the subsequent examination of the duty to obey the law, constitutional limits, and the idea of the public sphere.

The reinterpretation suggested here of Bentham’s theory of sovereignty contributes to a discussion which has occupied analytical jurisprudence for the last thirty-five years, since the appearance of Hart’s The Concept o f Law, concerning the precise nature of the normative and justificatory elements in the exercise of political authority. "Normative" has reference to a feeling of being under an obligation experienced by agents who participate in a social discourse. In the debate over the "justificatory" element, the question has been whether an appeal is to be made to moral reasons in ascertaining the validity of the actions of a centralised coercive authority. This jurisprudential debate about authority sprang from criticisms levelled by Hart in The Concept o f Law against Austin. These criticisms were developed by Hart in a more subtle form against Bentham in Essays on Bentham.

The main argument of this chapter is that Bentham’s theory of sovereignty was socially dynamic. Bentham conceived "sovereignty" as an ongoing activity of a critical nature, rather than as a static "test" according to which the formal legal validity (a criterion of authenticity) of coercive measures could be assessed. A theory of sovereignty for Bentham was not only about authenticity. His account also conceptually linked the authenticity of law with the

social justification of the exercise of centralised coercion. Sovereignty was about the justification of a "political authority".^

My argument is that a theory of sovereignty which provides merely for the recognition of a coercive measure as "law" can not properly account for any background critical justificatory dimension which, in fact, forms a conceptual part of such recognition. Reasons for the recognition of law qua law were an important part of Bentham’s conception of the origin and persistence of a political society. Any conceptual discussion of the foundation of authority and law which ignores these justificatory reasons will not be persuasive in social terms.^

Bentham rooted the validity of legislative commands in moral judgement. This moral judgement was made by the population and concerned the ultimate justification of the centralised institutional authority in the community. There was more to Bentham’s understanding of obligation than a prediction of punishment. It will also be argued that Bentham had a theory of obligation which did not get its normativity solely from a customary rule or rules. An important component of such normativity was a judgement, or opinion, with regard to the utility of a given coercive measure. The reinterpreted view of the moral nature of obligation in Bentham’s theory of sovereignty shows that he did not fully subscribe to the positivist view which divorces legal validity from moral worth, at the level o f description o f an individual law.

II

In this section, I shall summarise two critical accounts of Bentham’s theory of sovereignty

’ By a "political authority", I do not mean a theoretical authority (such as an expert’s advice), but a one which promulgates coercive measures.

and its relationship to his theory of law, namely those of H.L.A. Hart and G J . Postema. I shall start with Hart’s criticisms of Bentham’s command theory of law put forward in Essays on Bentham. Hart’s first criticism related to Bentham’s confusion of legal validity and obedience; that is, of legal validity and the effectiveness of the law. Hart embarked on this criticism because Bentham described sovereignty in terms of the "habit" or "disposition" of the people to obey a person or a body of persons.

Hart gave an example of a constitutional limitation which was transgressed by the legislature. This act of transgression could nevertheless be obeyed by a large section of the population for personal reasons;

It may be that no cases come before the Courts to test the validity of the legislation; yet if such a case does arise, the fact that the legislation has been and is likely to be obeyed would not prevent the Courts holding that, because of the restrictive prohibitions of the constitution, this legislation is invalid and has created no legal obligation.^

Hart attempted to detach the "legal" validity of a measure from its effectiveness. A constitutional limitation could be valid even if generally ignored by the population. Constitutional transgressions were nevertheless transgressions, even if they were complied with by the population:

limited obedience by the population is not a necessary condition of legal limitations on government: and legally limited powers to legislate are compatible with general obedience to commands outside the limits. The validity or invalidity of legislation is not to be identified with its effectiveness or ineffectiveness in securing obedience nor are these different properties of legislation always concomitant.'^

Hart’s second main criticism of Bentham was that he failed to distinguish between the aspects of legality and validity of a legislative measure. Hart’s understanding of the difference between these notions was that the term "legality" conveyed the notion of acting

^ Hart, Essays on Bentham, p. 234. " Ibid.

in a way permitted by the law. The term entailed what was legally permissible or impermissible. "Validity", on the other hand, marked the extent of competence. It signified the extent of authority, and so would constitute a boundary to power.

Holding a measure invalid would mean that a body was not conferred powers to act in the first place, so its act should be considered not in the realm of legal permissibility (because it might in fact be legal), but as ultra vires and hence void ab initio. This power, in short, ought not to be recognised as a power which could produce legal measures in this particular area.

Because, Hart claimed, Bentham saw all powers as legally based (conceived or adopted by a sovereign), his ability to distinguish between these two notions was limited. Bentham could not distinguish between legal validity and invalidity on the one hand, and between a legally permitted and prohibited act on the other. He thought of all law as an expression of will, and hence a legal limitation for him would come only under the dichotomy of legally permitted and prohibited.^ This failure by Bentham to distinguish between validity and legality seriously undermined his account of the concept of law. For example, Bentham failed to describe coherently legal powers whose function in many everyday situations, like contracting and conveyancing, gave rise to the above distinction.® Another example was constitutional limits. Bentham could not account for the fact that a government might be both legally limited (by a legal measure), and also limited in terms of competence (constitutionally limited) by law. This was so because for Bentham, Hart claimed, sovereignty could not be a legal power, and therefore he could not conceive any legal limitation on it:

Bentham’s difficulties in accommodating the possibility of legal limitations on

® Ibid., p. 225. ®Ibid., p. 214.

supreme legislative power sprang from the conception that the legislative powers of the sovereign are not conferred by law. ^

Hart’s final, yet most fundamental, criticism of Bentham related to Bentham’s partial understanding of the notion of obligation. This criticism was more fundamental than the others because it was not restricted to jurisprudential enquiry but extended across the whole field of normative discourse. This criticism was more fundamental than criticisms of Bentham’s account of sovereignty, because the manner in which sovereignty was viewed would ultimately depend upon how a discourse about political authority dealt with the normativity of such an authority.

In the final chapter of Essays on Bentham, Hart showed that Bentham’s idea of a command failed to explain the normative effect of law. Hart’s main criticism was that, like Austin’s command theory of law, Bentham’s theory could not explain the normativity of law.

What did Hart mean by "normativity"? Normativity related to the likelihood of social criticisms of individuals in the case of their deviation from a given course of action, or from social norms. However, it was possible for any normative attitude to become more reflective by encompassing an "internal point of view":

What is necessary (for the existence of feelings of compulsion with regard to a social rule) is that there should be a critical reflective attitude to certain patterns of behaviour as a common standard, and that this should display itself in criticism (including self-criticism), demands for conformity, and in acknowledgements that such criticism and demands are justified, all of which find their characteristic expression in the normative terminology of "ought", "must", and "should", "right" and

"wrong".*

Such normativity, with or without an internal point of view, constituted for Hart the main characteristic which distinguished a social rule from mere habitual behaviour, or from

" Ibid., p. 224.

behaviour determined by the imposition of sanctions (or threat of sanctions). In order to account for such distinctions. Hart differentiated the idea of "being obliged" (a command which induced compliance by the threat of sanction), from that of "having an obligation" (being influenced by social norms).

It is with this idea of the normative aspect of a rule in mind that one ought to read Hart’s final chapter in Essays on Bentham. In this chapter. Hart showed how Bentham’s theory of law, which had at its foundation the command of a person, or assemblage of persons, who were habitually obeyed, could not fully account for the normativity of law.

Before summarising Hart’s main point in this context, let me deal briefly with a relatively minor point Hart raised. He criticised Bentham for not considering the various communicative possibilities in which an authoritative utterance would not convey the actual state of mind of the commander.

Hart criticised Bentham’s notion of command as if Bentham assumed that a command was always an exact reflection of the actual wish of the commander. Hart claimed that Bentham did not discuss instances in which the commander gave an insincere command, whereby the object of the command uttered was different from the object intended, such as the case of God giving Abraham a command to sacrifice his son.^

This criticism was not justified. A long footnote in Official Aptitude Maximized; Expense Minimized., shows that Bentham clearly saw the possibility of a "volitional gap" in the process of uttering a command. Bentham observed that there could be a difference between the effect which appeared to be intended by the commander and the effect in reality intended by him. One cause for this gap, Bentham argued, might be a lack of the ability to judge a situation correctly (in Bentham’s terms, a want of discernment). Alternatively, the gap might result

from discernment applied to a sinister p u r p o s e .I n this context, the sinister purpose would be the desire to promote some particular interest of the commander, despite the utterance creating the impression that the command was intended to promote the interest of the commandée.“ Such a sinister purpose would be a motive which might produce an insincere command.

Further, it is not clear to what extent the possibility of the existence of a volitional gap, as raised by Hart, might stand as a significant criticism of Bentham’s main working assumption about the sincerity of commands. Since Bentham would have claimed that the actual state of mind of the utterer could be communicated in many cases. Hart’s criticism would not have much weight.

A plausible theory of law need not assume that all commands would be sincere. However, a theory of law based on the insincerity of commands would not be plausible. If the possibility were conceded that a certain mode of expression of a wish could also indicate the utterer’s state of mind (whoever this utterer might be - government, "public opinion"), one might say that Bentham’s account of a command was sufficient for what he saw as the main purpose of law, namely to regulate people’s conduct.

In fact, Bentham aspired to eliminate insincere commands from the legal system, so that people could understand the law, and thus obey it, censor it, or even resist it successfully. His aim was to promote clarity in communication, a quality which the common law had failed to achieve. In order to establish a regulative system which could promote social happiness, a sincere understanding between the commander and commandée had to be facilitated. One

Official Aptitude Maximized: Expense Minimized (CW), P. Schofield (ed.), Oxford, 1993, p. 16, note a.

" The term "sinister interest" was a term used by Bentham in his mature constitutional writings: see chapter 5, p. 167 below.

had to believe that for law to exist and to improve, the conveyance of information, or simply communication, was possible. Bentham did not believe that the task of law could be fulfilled once equivocal or corrupt characteristics were an inherent feature of it. The fact that an expression of will might be defective, in certain circumstances, as a means of communication, did not invalidate it from serving as the core of the concept of law. This argument would still hold, even if one put a "rule" rather than "a command", at the centre of a concept of law, as Hart of course did.

Yet this criticism was not Hart’s main point. The crux of his argument was that the notion of command failed to explain the normativity of the command itself. In other words, the fa ct that a command was uttered could not explain the normativity which the command possessed as an authoritative measure.

Hart sought to give a further explanation of his own notion of the "normativity of rules" in order to show that the mere fact of a command being uttered could not account for the normativity of such a command.

Hart claimed that inherent to a command was the intention for it to operate as a peremptory reason on the subject’s mind. The command would operate to cut off independent reasoning by the subject as to its justification.*^ Its utterance would operate as an exclusionary reason. Hart also maintained that the command operated as "content independent" in the sense that a commander might issue many commands which would be different in content, would be addressed to different people, and would all operate as peremptory reasons.*^ These two characteristics. Hart claimed, were the main ingredients of a command. (Hart combined these

See in this context J. Raz, The Authority o f Law, Oxford, 1979, pp. 14-20, and Practical Reasons and Norms, Princeton, 1990, pp. 36-41, 63, 82, 100; see also chapter 4, p. 113, note 12 below.

two characteristics in the phrase "content independent peremptory reason" for action (hereafter CIPR).

The fact that a punishment would often be attached to a command, in order to reinforce the motive of compliance on the part of the commandée, would be secondary in importance and would not go to explain the normative status the command had as such}^ Punishment should not be confused with the wider idea of normativity. Punishment could only be but one source for normativity.

A command in itself. Hart argued, could not explain its own status as CIPR. To explain the normative attitude which people had with regard to the command, that is their conception of it as authoritative, one had to go beyond the "fact of commanding". CIPR would operate as a description of the ingredients of the phenomena of "a command", but it could not explain why the commander’s utterances were perceived as CIPR.

Hart was in search of ultimate reasons to explain why the subject recognised the commander as such. Ultimate reasons. Hart claimed, could be diverse. They could include custom or simple conformism, and so would not have to emanate from the threat of san ctio n s.H o w ev er, all such reasons were exterior to the "fact of commanding". Hart, in effect, backed up the notion introduced in The Concept o f Law of an ultimate social rule, the reasons for the acceptance of which could be diverse. This master rule would operate as the ultimate source for the recognition of commands as valid law. This rule would be the ultimate criterion of legal validity. This validity did not owe its existence to a command backed by the threat of punishment, but might have a variety of social practices at its foundation. Hart’s argument in Essays on Bentham was a restatement of the idea deployed

Ibid., p. 254.

in The Concept o f Law. The "fact of commanding" could not explain the notion of legal validity, and the existence of legal limitations in this respect on the exercise of the powers of government;

The legal limitation of a commander’s power to legislate would simply be a reflection of the fact that the sphere of conduct in relation to which his words are recognized as constituting peremptoiy reasons for action is limited/^

On the basis of reading together Hart’s accounts in The Concept o f Law, and Essays on Bentham, concerning the nature of the normativity of law, his argument might be summarised thus: the reasons which made a commander such resulted from practices that led to his utterances being perceived as CIPR. An ultimate validating social rule in a given society would enable all the people in that society to recognise the commander as an authentic source of valid law. In analysing the ideas of the normativity of law and "recognition". Hart endeavoured to show that the notion of "validity" would be distinct from saying that a given measure was legally permissible or impermissible by the "fact of commanding". Further, acts of "recognition" of commands as valid "laws", which operated as CIPR, need not consist in a critical reflective attitude which amounted to the "internal point of view". The CIPR status of utterances could stem from qualitatively different reasons for the people in a community