The Evil That Men Do 2 – John Austin

Posted in Inspirational, Thoughts by drsivalaw on September 10, 2008

Let me begin by examining the various juristic traditions and their justifications and possible motivations. I think a good starting point is a theory that asserts that LAW IS POWER.

John Austin’s Positivism
Austin more than any other jurist provided a compact and systematic formulation of a conception of law which allowed an escape from the tradition bound theory implicit in classical English common law thought. He offered a way of looking at law that made legislation central rather than peripheral. Perhaps an indication of the times in which he lived, the gradual secularization of the state and the ascendancy of Parliament over the King and the Church. His legal theory recognized the reality of the modern state as a massive organization of power. Tearing down mercilessly pretensions about justice and its relationship with law.
I repeat a sentiment expressed earlier,
“The science of jurisprudence is concerned with positive laws, or with laws strictly so called, as considered without regard for their goodness or badness.”It is important to understand that the primary motivation for Austin in his jurisprudence was his disenchantment with the English common law. He was generally hostile about judge made law. His teacher, Jeremy Bentham, once wrote that judge made law is like waiting for one’s dog to do something wrong and then beating it. The common law had a reactive focus rather than a pro-active one. It was not a progressive system of law. By contrast, Austin saw Roman law, especially as interpreted and developed by continental civil jurists as the epitome of a rational legal order vastly superior to the English common law in its organization and coherent development. He says of it, “ Turning from the study of the English to the study of the Roman Law, you escape from the empire of chaos and darkness, to a world which seems, by comparison, the region of order and light.”

The Command Theory

The proper “Province of Jurisprudence” is positive law and the ‘key in the sciences of jurisprudence and morals’ is the ‘command’, Austin claimed. For this reason his theory is referred to as ‘The Command Theory of Law’.
“A law in the most general and comprehensive acceptance in which the term, in its literal meaning, is employed, may be said to be a rule laid down for the guidance of an intelligent being by an intelligent being having power over him.”Hence put succinctly: “LAW IS THE COMMAND OF A SOVEREIGN”

The Command
The command is basically an order that is validated by the political system and enforced by the use of sanctions. Hence the idea of command is closely linked to the force that is used to compel compliance.
Austin defines law as a species of command, like Hobbes before him. Austin is direct and straightforward in his characterization of law. For him power is central to law. Thus the sanction is an important part of the command. Austin says that the must be an actual likelihood of a sanction being imposed. This is because for Austin it is the sanction, which supplies the motive for compliance.
Therefore what Austin is saying is that people obey laws because of their fear of sanctions. Austin goes on to say that ‘the greater the sanction and the greater the likelihood of it being applied, the greater the obligation’ under the law. This is essentially a simple idea – Austin is saying that because the penalty for murder is life imprisonment and the penalty for a traffic offence is a fine, people feel under a greater obligation not to commit murder. Similarly he is saying that people are more likely to stop at the red traffic light at 12 noon, then at 2am in the morning because the likelihood of detection is greater at 12 noon.

The Sovereign
The distinctive feature of law is that it law is the command of the ‘Sovereign’ not anyone else.
He says, the sovereign is “a determinate human superior, not in a habit of obedience to a like superior, (and who) receives habitual obedience from the bulk of a given society…..that determinate superior is sovereign in that society, and that society… a society political and independent.”
Austin’s concept of the sovereignty is highly controversial. Positive law is the command of the sovereign. The sovereign is an actual person or an assemblage of persons who do not habitually obey anyone but who are habitually obeyed by everyone in an independent political society.
Austin says there are two marks of sovereignty: first, the sovereign must be ‘habitually obeyed’ by the ‘bulk’ of the society (a condition of general efficacy), this being the positive mark of sovereignty, second, the sovereign does not habitually obey anyone else, this being the negative mark of sovereignty. He says two consequences flow from this definition, the sovereign is legally indivisible (the positive mark) and the sovereign is not capable of being legally limited (the negative mark).

Something to think about
Although it appears that commands flow from the sovereign, when Austin’s definition of the Sovereign is closely analyzed, it becomes clear that it is the ability to command habitual obedience that makes someone the sovereign. Therefore the question is: Is it because a person is habitually obeyed that he is able to command, or is it because he is able to command that he is habitually obeyed?

(To be continued)

The Evil That Men Do 1

Posted in Inspirational, Thoughts by drsivalaw on September 4, 2008

The history of the world is a history of conflict. Marx conceived this conflict as a ‘class struggle’. The struggle for the emancipation of the workers – the struggle towards an egalitarian society. Marx looked up law as an instrument of class oppression, it functioned to bolster the position of the capitalist and keep in check class antagonisms. Whilst there is some measure of truth in what Marx says, I do not think that even Marx could have rationalised the wholly irrational world that has come into being over the past 50 or so years.  Today, we live in a world defined by conflict and limited by ignorance.


Recent events around the world have prompted me to reexamine the question – what is law? Does the liberal claim that law is a purposive activity have any merit, and if so, what exists in countries where the law is not purposive but is used as an instrument of tyranny. There is always the status quo and that is juxtaposed against forces that what to change the system.

Some of the major conflicts around the world today are:

1. Sri Lankan civil war
2. War in Afghanistan
3. Iraq war
4. War in Darfur
5. War in Somalia
6. Conflict in Burma
7. Arab-Israeli conflict
8. Armed conflict in Colombia
9. Communist and Islamic insurgency in the Philippines
10. Internal conflict in Peru
11. Turkey-PKK conflict
12. Somali civil war
13. Kashmir conflict (India/Pakistan)
14. Casamance conflict (Senegal)
15. Conflict in the Niger Delta (Nigeria)
16. Ethnic conflict in Nagaland (India)
17. Insurgency in Oganden (Ethiopia)
18. Kivu conflict (Congo)
19. Chechen War (Russia)
20. Insurgency in the Maghreb (Algeria, Mauritania & Morocco)
21. Balochistan conflict (Pakistan)
22. Sa’dah insurgency (Yemen)
23. South Thailand insurgency
24. War in Chad
25. Mount Elgon insurgency (Kenya)
26. Fatah-Hamas conflict
27. Tuareg rebellion (Mali)

All of these conflicts cannot be examined by reference to any one juristic tradition. Their causes are manifold and the political and ideological backdrop ever changing. So what is law and can it exist in these circumstances? And can there be a duty to obey law in such conflicted systems and if so, what is legal obligation.


In International Law there seems be little problem in trying people for large scale genocide under the broad umbrella of ‘crimes against humanity’. In 2002, the International Criminal Court (ICC) was established in The Hague. The Rome Statute provides for the ICC to have jurisdiction over genocide, crimes against humanity and war crimes. The definition of what is a “crime against humanity” is stated in Article 7 of the treaty as follows:

“Crime against humanity” means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack: (a) Murder;(b) Extermination;(c) Enslavement; (d) Deportation or forcible transfer of population; (e) Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law;(f) Torture; (g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity; (h) Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court; (i) Enforced disappearance of persons; (j) The crime of apartheid; (k) Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.

This is further explained in the Rome Statute Explanatory Memorandum which states that crimes against humanity are particularly odious offences in that they constitute a serious attack on human dignity or grave humiliation or a degradation of one or more human beings. They are not isolated or sporadic events, but are part either of a government policy (although the perpetrators need not identify themselves with this policy) or of a wide practice of atrocities tolerated or condoned by a government or a de facto authority. However, murder, extermination, torture, rape, political, racial, or religious persecution and other inhumane acts reach the threshold of crimes against humanity only if they are part of a widespread or systematic practice. Isolated inhumane acts of this nature may constitute grave infringements of human rights, or depending on the circumstances, war crimes, but may fall short of meriting the stigma attaching to the category of crimes under discussion. On the other hand, an individual may be guilty of crimes against humanity even if he perpetrates one or two of the offences mentioned above, or engages in one such offence against only a few civilians, provided those offences are part of a consistent pattern of misbehavior by a number of persons linked to that offender (for example, because they engage in armed action on the same side or because they are parties to a common plan or for any similar reason.) Consequently when one or more individuals are not accused of planning or carrying out a policy of inhumanity, but simply of perpetrating specific atrocities or vicious acts, in order to determine whether the necessary threshold is met one should use the following test: one ought to look at these atrocities or acts in their context and verify whether they may be regarded as part of an overall policy or a consistent pattern of an inhumanity, or whether they instead constitute isolated or sporadic acts of cruelty and wickedness.

The problem with this is that it presupposes some broad juristic principle calling for the preservation of humanity. This then is based on some preconceived idea of what the ‘legal obligation’ to preserve ‘humanity’ consists of. I for one am unconvinced. Please do not misunderstand my position – clearly there are many individuals who have perpetrated untold tortures and genocide against defenseless people who are richly deserving of condemnation. The problem I have with this is this – invariably all those individuals who are brought to trial are deposed and powerless at the time of their trial –

Some of the former heads of state and heads of government in that category who have been charged include:

The jurisprudence in all this:


The position of many modern day lawyers mirrors the views expressed by the English positivists of the 19th century. The English jurist John Austin famously said, ‘ The most pernicious laws and therefore those which are most opposed to the will of God, have been and are continually enforced as laws by judicial tribunals ……. An exception, demurrer, or plea, founded on the law of God was never heard in a Court of Justice’.

On this view, law is an instrument of political power and it reflects whatever political base exists in a country. Accordingly, when a system loses its political efficacy, it ceases to have any validity and the new system is valid. This means that the people who now have the POWER will call the shots and in my view the many prosecutions for crimes against humanity is an illustration of this fact, rather than any claim based on fairness or morality. The whole idea that ‘justice’ is being served by the work of the ICC is an oversimplification of the forces at work.

A crime against humanity” occurs when there is a widespread or systematic attack directed against any civilian population – isn’t that what happened when the United States and their allies invaded Iraq. When the Soviet Union invaded Afghanistan and more recently when Russia invaded Georgia. When China invaded Tibet. We see this again and again around the world. The United States, the most powerful country in the world and ideologically the most democratic is guilty of many crimes against humanity, the manner in which prisoners are treated in Guantanamo are particularly odious offences in that they constitute a serious attack on human dignity, grave humiliation and degradation of all the human beings held there. The ultimate defense is that they are engaged in a war against terror. What about the terror that they have caused in the world against millions of innocent civilians? Does the death of 3,000 Americans on September 11 in New York justify the actions taken in retaliation for it.


Yet justice more than any other concept has been the most closely associated with law. Positivism holds that law and justice sometimes can and is a paradoxical dichotomy.


Politics of Myopia

Posted in Inspirational, Thoughts by drsivalaw on August 15, 2008

This past week has seen several incidents that seem to indicate to me that after more than 50 years of independence, our nation is still perched on the dangerous cliff called ‘racism’. Our moral integrity as human beings hanging on for dear life, as the political forces of myopia diligently plot our fall.

Selangor Menteri Besar Tan Sri Khalid Ibrahim’s suggestion for UiTM to open up 10% of its intake to other races was met with a generally hostile response since the move was seen as challenging the special rights of the Malays. The general argument is that if UITM opened its doors this would lead to a situation where many Malay institutions will disintegrate. This would lead to the special rights of Malays being eroded.

Racism has been a part of our culture since the country’s inception. It’s very much an open secret. The secret part of it is largely due to the provisions of the Sedition Act which make it an offence to incite or inflame racial sentiments. Yet over the past one week, I have heard prominent Malay politicians say things like, “Don’t push the envelope with the Malays or be prepared to face the consequences – you don’t know what’s coming”. “Don’t challenge the Malays.”

I think I have been living in a fantasy world (but I am convinced I am not alone). I don’t and never have thought of my friends by reference to their racial denomination. A Malay, a Chinese, an Indian, etc. They are my friends, Ahmad, Peter and Samy. I have never attached any special significance to their race because it really does not matter. People are good or bad, or sometimes a bit of both. Race does not prequalify a person to any special claim or right in relation to character, integrity or virtue. In my mind the average Malaysian does not think about race either. Most people are thinking about how to improve their conditions of living and surviving mostly, in what is a grossly inequitable world.

Embracing cultural diversity, with tolerance, respect and understanding should be the fundamental principle of any nation that aspires towards greatness. These laudable principles would probably be applauded by many but the question is how do we deal with this complex, emotive and at times, divisive ethos without causing further conflict or merely treating it in a superficial manner? My main concern is that we must deal with our multiculturalism in a manner which avoids tokenism.

This is the course that the Malaysian leadership has embraced over the past 40 years. At least in my living memory. A path of tokenism.

For Malaysia to be truly Asia (as the song goes) our society must embrace multiculturalism wholeheartedly as something that strengthens us not the contrary. It requires a tolerance of difference and a pluralistic view of culture. For these attributes to be part of a society’s psyche there must first exist empathy and a willingness to examine one’s own perspectives in the light of alternate perspectives. Our education system lies at the heart of this process.

Educators are in a unique position to foster and facilitate those personal characteristics necessary to accept change open-mindedly and with a willingness to incorporate the aspirations of all for the wellbeing of all. This sort of attitude to life is one which must evolve. It requires a particular approach to life and learning – a sincere and courageous quest for truth and meaning in all facets of one’s learning. A pluralistic view of life can only be gained through a desire to understand and respect the experiences of others, and this can only be achieved effectively when it is incorporated automatically into one’s reflections about life.

It is shameful when the very education system and educators who should be promoting critical thinking and open mindedness, skew the system to achieve very short term and myopic political aims.

Racism as a social toxin, the origin of which can only be found by delving deeply into the social unconscious. Differences of opinion on the complex issues of religion, law, morality and customs will always exist between varying cultures. We have to be respectful of each other and develop a sense of conviction that we have a common history and a common destiny. We must believe in the power inherent within us to remove some of the barriers and render those that remain more transparent, thus providing a glimpse into the thoughts and feelings of those who live on the other side. There is no antidote to the toxin but we could help pave the way for an increase in tolerance and an enrichment of our lives, gained through an everwidening range of possibilities from which to choose when determining our beliefs, codes of behaviour, and our direction as a society.

“Affirmative action” means positive steps taken to increase the representation of Malays in areas of employment, education, and business because they have been historically disadvantaged. In my view this is both necessary and desirable to create social equilibrium. Nothing will endanger our society more greatly than our unwillingness or inability to provide opportunities for people who are socially disadvantaged.

This is different from saying that because I come from a particular race group, I am entitled to certain rights even though I don’t need such preferential treatment. Such an assertion will make a sham of the fundamental principle of equality enshrined in Art. 8 (1) of our federal constitution. The principle of equality is the most fundamental of human rights and has been described as the “starting point of all liberties”. International human rights law reflects this belief. Art.3 of the Universal Declaration of Human Rights, 1948 (UDHR) declares that all human beings are born free and equal in dignity and rights. The UDHR is not a treaty but it embodies a moral authority and sets out a common standard of achievement of all peoples and nations. The UDHR is the root document from which the international human rights treaties have grown.


The Penalty of Leadership

Posted in Inspirational by drsivalaw on July 22, 2008

In every field of human endeavour, he that is first must perpetually live in the white light of publicity. Whether the leadership is vested in a man or in an institution, emulation and envy are ever at work. In art, in literature, in music, in industry, the reward and the punishment are always the same.

The reward is widespread recognition; the punishment, fierce denial and detraction. When a man’s work becomes the standard for the whole world, it also becomes a target for the shafts of the envious few. If his work be merely mediocre, he will be left severely alone – if he achieves a masterpiece, it will set a million tongues a-wagging.

Jealousy does not protrude its forked tongue at the artist who produces a commonplace painting. Whatsoever you write, or paint, or play, or sing, or build, no one will strive to surpass or slander you, unless your work be stamped with the seal of genius. Long, long after a great work or a good work has been done, those who are disappointed or envious continue to cry out that it cannot be done.

Spiteful little voices in the domain of art were raised against our own Whistler as a mountebank, long after the big world had acclaimed him its greatest artistic genius. Multitudes flocked to Bayreuth to worship at the musical shrine of Wagner, while the little group of those whom he had dethroned and displaced argued angrily that he was no musician at all.

The little world continued to protest that Fulton could never build a steamboat, while the big world flocked to the river banks to see his boat steam by. The leader is assailed because he is a leader, and the effort to equal him is merely added proof of that leadership. Failing to equal or to excel, the follower seeks to depreciate and to destroy – but only confirms once more the superiority of that which he strives to supplant.

There is nothing new in this. It is as old as the world and as old as human passions – envy, fear, greed, ambition, and the desire to surpass. And it avails nothing, If the leader truly leads, he remains – the leader.

Master-poet, master-painter, master-workman, each in his turn is assailed, and each holds his laurels through the ages. That which is good or great makes itself known, no matter how loud the clamour of denial. That which deserves to live – lives.


Tagged with: ,