Abstract
The proposition that one’s social position changes one’s experience of law presents a fundamental jurisprudential question concerning the relationship between the abstract legal subject and the concrete person who lives under law. Legal systems ordinarily formulate rules in general terms and present legal rights and duties as applicable to persons irrespective of their social position. Yet the existence of formally general rules does not necessarily mean that all persons encounter legal authority, legal obligation, legal rights and legal institutions in the same manner. This article examines the proposition principally through jurisprudence rather than empirical sociology. It begins with the classical conception of the legal subject and considers whether the social position of an individual can have any relevance to the nature, validity or authority of law. The analysis engages with John Austin’s command theory, Hans Kelsen’s Pure Theory of Law, H.L.A. Hart’s concept of law, Lon L. Fuller’s account of the inner morality of law and Ronald Dworkin’s interpretive theory. The article argues that social position cannot ordinarily determine the legal validity of a norm within a positivist conception of law. Kelsen’s theory demonstrates that the validity of a norm is determined through the structure of the legal order rather than through the subjective experience of the individual subject, while Hart distinguishes the existence of legal rules from the varying attitudes of persons towards them. Nevertheless, these theories do not establish that experience is jurisprudentially irrelevant. Fuller’s emphasis upon publicity, clarity and congruence reveals that the capacity of law to guide conduct depends upon conditions through which subjects encounter legal norms. Dworkin’s theory of rights and interpretation further demonstrates that the abstract legal subject cannot always be separated from questions of equality, principle and institutional justification. The article therefore distinguishes between the proposition that social position changes what law is and the proposition that social position changes how law is experienced. The former proposition cannot be accepted merely because persons occupy different social locations; the latter can be defended without reducing law to sociology. Economic position, institutional status and legal knowledge may alter the manner in which individuals understand legal rules, access legal institutions, bear legal burdens and invoke legal remedies, while the underlying rule remains legally identical. The article ultimately argues for a relational jurisprudence in which the autonomy of legal validity is preserved but the legal subject is understood as situated within institutional and social conditions. Law is neither simply a reflection of social position nor an abstract system completely detached from it. The experience of law occurs at the point where general norms encounter particular subjects.
Keywords: Jurisprudence; Social Position; Legal Subject; Legal Positivism; Pure Theory of Law; Legal Obligation; Legal Validity; Legal Interpretation; Equality; Rule of Law.
INTRODUCTION
The proposition that one’s social position changes one’s experience of law appears deceptively simple. It is easy to observe that individuals occupying different positions in society may encounter courts, police authorities, administrative institutions, contracts, property rules, criminal law and constitutional rights under different circumstances. A wealthy person may approach law principally through lawyers, professional advisers and institutional mechanisms, while an economically vulnerable person may encounter law through compulsory procedures, public authorities or criminal justice institutions. A judge may experience a legal rule as an institutional standard governing adjudication, whereas a litigant may encounter the same rule as a source of entitlement, restriction or uncertainty. A lawyer may encounter a statute through technical interpretation, while an ordinary citizen may encounter the same statute through its practical consequences. These differences are ordinarily described as social or sociological differences. Jurisprudence, however, cannot simply dismiss them as external to the study of law, because the philosophical concept of law necessarily contains a conception of the person to whom law is addressed. Law regulates conduct, imposes duties, confers powers, creates rights and establishes institutional relationships. The person who is subject to these norms is not merely an abstract logical point. The legal system addresses human beings and legal entities occupying particular relationships within the legal order. The central jurisprudential problem is therefore to determine whether the socially situated character of the legal subject affects the nature of law itself or only the manner in which law is encountered. This distinction is essential. If social position determined the validity of law, the same legal rule could become legally valid for one person and invalid for another merely because their social circumstances differed. Such a conclusion would undermine the generality and institutional character of law. A legal system requires criteria through which legal rules can be identified independently of the subjective preferences of individual persons. The proposition that social position changes legal experience must therefore be formulated more carefully. It does not necessarily mean that social position changes the content or validity of a legal rule. It may instead mean that the same valid rule acquires different practical significance when encountered by persons situated differently within economic, institutional and social structures. The distinction between validity and experience becomes especially important in jurisprudential debates concerning legal positivism. Hans Kelsen’s Pure Theory of Law seeks to explain law as a normative order without reducing legal validity to morality, sociology or psychology.¹ H.L.A. Hart similarly distinguishes the existence of legal rules from their moral merits while explaining legal systems through primary and secondary rules and the social practice of officials.² These theories establish important limits upon the proposition that social position determines law. Yet they do not necessarily answer every question about the relationship between legal norms and their subjects. The question “what makes a norm legally valid?” is different from the question “what does it mean for a particular person to live under that norm?” Jurisprudence can therefore preserve the autonomy of legal validity while recognising that law is experienced through concrete persons. This article argues that social position does not ordinarily determine legal validity, but it can determine the circumstances in which law becomes intelligible, burdensome, protective, accessible or coercive. The argument does not reduce law to social power. Nor does it suggest that every difference in experience demonstrates discrimination or legal inequality. Instead, it identifies a conceptual distinction between the abstract legal subject and the situated legal subject. The abstract legal subject is necessary to the generality of law; the situated legal subject is necessary to understanding the operation and practical significance of law. The jurisprudential task is not to choose between these two conceptions but to explain their relationship.