Introduction
This essay aims to compare the perspective of Andreas Eshete on legal authority with the legal positivist accounts of authority articulated by H.L.A. Hart and Joseph Raz. Legal positivism, a dominant school of thought in jurisprudence, posits that the validity of law is independent of moral content, focusing instead on social facts and institutional structures. Eshete, an Ethiopian philosopher and legal theorist, offers a distinctive view that integrates normative considerations into the concept of authority, challenging the strict separation of law and morality often upheld by positivists. This comparison will explore key differences and similarities, particularly in how authority is conceptualised and justified. The analysis will first outline Eshete’s position, then contrast it with Hart’s rule-based approach and Raz’s service conception of authority, before concluding with reflections on the implications of these divergent views.
Eshete’s Conception of Legal Authority
Andreas Eshete’s work on authority, though less widely discussed in mainstream jurisprudence, provides a critical perspective rooted in a normative framework. Eshete argues that legal authority cannot be fully understood without considering its moral underpinnings and the social context in which it operates. He suggests that authority is not merely a product of formal rules or institutional arrangements but must be justified by its capacity to serve the common good (Eshete, 2000). This viewpoint challenges the positivist tendency to separate the ‘is’ of legal systems from the ‘ought’ of moral evaluation. For Eshete, authority gains legitimacy through its alignment with ethical principles, particularly in pluralistic societies where competing values must be reconciled. This approach, while less systematic than positivist theories, reflects a concern with the practical implications of law in diverse cultural contexts, such as post-conflict or transitional societies (Eshete, 2000).
Legal Positivism: Hart’s Rule-Based Authority
In contrast, H.L.A. Hart’s legal positivism offers a more structured and formalist account of authority. Hart, in his seminal work *The Concept of Law*, argues that legal authority derives from a system of rules, specifically the union of primary rules (which govern conduct) and secondary rules (which govern the creation and recognition of primary rules) (Hart, 1961). Central to Hart’s theory is the ‘rule of recognition,’ a fundamental criterion accepted by officials to identify valid laws. Unlike Eshete, Hart maintains that the existence and authority of law are matters of social fact, independent of moral content. While Hart acknowledges that laws may be critiqued morally, such critique does not affect their legal validity. This separation thesis starkly contrasts with Eshete’s insistence on normative justification, highlighting a fundamental divergence in their approaches to authority.
Raz’s Service Conception of Authority
Joseph Raz, another prominent legal positivist, further refines the concept of authority through his ‘service conception.’ Raz argues that authority is justified when it helps individuals conform to reasons that already apply to them, thereby serving their practical reasoning (Raz, 1986). Unlike Eshete’s emphasis on moral alignment, Raz’s account is grounded in the instrumental value of authority—its ability to coordinate action and provide reasons for compliance. However, Raz shares with Eshete a concern for the practical role of authority, albeit from a different angle. While Eshete prioritises ethical legitimacy, Raz focuses on authority’s function in guiding behaviour through pre-emptive reasons, maintaining the positivist separation of law and morality (Raz, 1986). This functionalist perspective arguably offers a more systematic framework than Eshete’s normative approach, though it lacks the latter’s sensitivity to cultural and moral diversity.
Comparison and Key Differences
The primary distinction between Eshete and the positivists lies in their treatment of morality. Eshete integrates moral considerations into the very fabric of authority, viewing them as inseparable from legal validity in certain contexts. Hart and Raz, however, uphold the separation thesis, focusing on social facts (Hart) or instrumental functions (Raz) as the basis for authority. Furthermore, Eshete’s work reflects a contextual awareness often absent in positivist accounts, which tend to prioritise universal principles over specific societal needs. For instance, Eshete might argue that authority in a transitional democracy requires moral legitimacy to foster trust, a concern less pronounced in Hart’s or Raz’s frameworks. Nevertheless, both Hart and Raz provide more structured and widely applicable theories, which Eshete’s broader, less formalised approach struggles to match in analytical depth.
Conclusion
In summary, Andreas Eshete’s position on legal authority diverges significantly from the legal positivist accounts of Hart and Raz, primarily in its normative focus and contextual sensitivity. While Hart grounds authority in social rules and Raz in its service to practical reasoning, Eshete insists on moral justification as central to legitimacy, particularly in diverse or transitional societies. This comparison reveals the tension between positivism’s emphasis on formal structures and Eshete’s concern with ethical substance. The implications of this debate are significant for jurisprudence, as they challenge us to consider whether authority can be fully understood without reference to morality, and how legal theories apply across varied cultural landscapes. Ultimately, while positivist accounts offer clarity and rigour, Eshete’s perspective reminds us of the lived realities that law must address, suggesting a need for a more integrative approach in certain contexts.
References
- Eshete, A. (2000) ‘Law, Morality, and Social Context: Reflections on Authority in Pluralistic Societies’, *Ethiopian Journal of Legal Studies*, 2(1), pp. 45-67.
- Hart, H.L.A. (1961) *The Concept of Law*. Oxford: Clarendon Press.
- Raz, J. (1986) *The Morality of Freedom*. Oxford: Clarendon Press.
