#19666 - 5.A. The Relationship Between Law And Morality Legal Positivism And Its Critics Positivism - Jurisprudence

Positivism

LECTURE(s)

• The nature of law and legality is the focus of this section

• Debate about nature of law usually revolves around morality

• Normativity = what accounts for law’s BINDING force?

  • Quality of imposing an obligation upon us

• Hart = legal positivism; Dworkin criticizes it; methodological differences between them

Legal Positivism

• Positivism = laws are “POSITED” – i.e., made by man

• To figure out what the law is, we must look at was has been posited – i.e., social fact

  • Facts about what people have said and done (laid down, created) = question of fact

    • E.g., did X institution create a particular law in a particular place?

• We can identify the existence of law/its content without consulting morality

• Austin – existence of law is one thing; its merit is another

  • Identifying the law is a separate activity from evaluating it

• Social sources of law – legislation, judicial decision, customs, etc.

Foundations

• Hobbes is a forebear – law as command (although he did speak of natural law); Kant too

• Bentham and Austin want to separate morality from law – point is to create a “science” of law and politics; DEMYSTIFCATION of the CL is their goal

• Law = COMMAND of SOV, who is HABITUALLY OBEYED, backed by THREAT of sanctions for disobedience

Hart’s Legal Positivism

• Thinks that Austin hasn’t exactly nailed it

• Criticizes “command theory”; Austin/Bentham go too far in the direction of thinking about law as purely about command/force/coercion

• It isn’t that law is a gunman – law has some sort of LEGIT; people ACCEPT it

  • Austin doesn’t give us a reason to obey – he just says the SOV is obeyed

Hart’s Notion of Legal Powers

• Some laws don’t order people to do X, they give people POWERS

  • Private powers – e.g., making contracts, marrying

  • Public powers – e.g., ministers making regulations

• No threat/command here; sanction here is e.g., no contract

• The point of these rules is to facilitate certain things

Hart’s Critique of Sovereignty

• How do we make sense of rules that bind SOV himself?

  • E.g., a prior rule that establishes succession (e.g., eldest son) – rules that constitute and limit legal authority

• These types of rules emerge from CUSTOM

• Point is – Austin’s definition is troubled because it doesn’t do justice to:

  • Law’s NORMATIVITY

  • Law’s SYSTEMATICITY

• For Hart, law is a type of rule – not a threat, not a habit

• Being obliged IS NOT THE SAME as having an obligation

  • Law = we have an obligation

  • With sheer threat of coercion = we are obliged to do it (e.g., because of fear)

• Obliged = asserting X about beliefs/motives; you might have an obligation to do something, regardless of your motives/beliefs/sanctions

• Rules impose an obligation – they aren’t merely a PREDICTION that you’ll do X

  • There’s no rule telling you to pay money to the gunman

• A rule is a REASON for X

Hart on Points of View

• The above is not a given – some people might have different POVs (for some, giving a gunman his money in an obligation)

• E.g., traffic lights, red light = you stop your car; an outsider can predict that when the light is red, you stop – EXTREME EXTERNAL POV

  • Doesn’t really allow you to see what’s going on – people stop because there is a rule (you don’t see this)

    • There is an INTERAL POV

      • Acceptance of a particular phenomenon as a reason for action

• E.g., officials in legal system, private persons who use rules as guides on how to live AND as a basis for judging others

  • They look at rule from internal POV

• NOTE – this doesn’t mean MORALLY making a judgment about them

  • Internal POV – acceptance, but not necessarily moral acceptance

• However, it’s possible to DESCRIBE the internal POV without adopting it

  • “As a good Catholic, you should go to Mass on Sunday” – you have an obligation to go to Mass, not merely a habit

    • Hermeneutic or non-extreme external perspective

• Fourth alternative – people who DON’T ACCEPT and are participants in the system

  • POV of the “bad man”

• Shapiro

  • Two POVs are theoretical – from observer’s POV

  • Two POV are practical – actual engagement with the system

Legal Positivism: Law as a System

• Austin’s account is also missing the split between PRIMARY and SECONDARY rules

  • Primary – what one ought to do (e.g., against theft, murder, etc.)

  • Secondary – rules about rules

• A SOC with only primary rules would be dysfunctional (unless a very small community):

  • UNCERTAINTY - about content of primary rules

    • Rule of recognition

      • You know where to look at in case of dispute

  • STASIS – rules would change very slowly; no way of deliberately adapting

    • Rules of change (public and private)

  • INEFFICIENCY – social pressure would be only means of ENF; not enough for compliance

    • Rules of adjudication

Rule of Recognition

• The ultimate “rule”

• RoR = gives criteria for deciding which other rules are valid

  • E.g., in GBR, it’s the laws that receive Royal Assent (roughly speaking)

• If we know RoR, we identify the law by only look at social facts WITHOUT making a moral judgment – e.g., adultery = morally wrong, but not illegal

• RoR isn’t itself a legally valid rule

  • If it were, we would have another RoR to identify it

  • E.g., PAR SUP – no rule which defines it, it’s simply so (a matter of FACT)

• To the extent that it’s accepted, RoR exists

A Legal System

• Hart tries avoiding Austin’s mistakes, but he does still offer a definition:

  • Legal officials accept RoR (take internal POV)

  • Bulk of population obey what primary rules validated by RoR demand (internal POV or not – many people might see it in terms of “bad man” POV)

Limits of Hart’s Concept of Law

• Some issues:

  • Doesn’t say WHY people accept RoR

  • Doesn’t say WHETHER people should accept RoR

• Hart says these are different (moral) questions

• R. Stone – Hart has missed the point for the “Why” question; intrinsic, epistemic reasons

READING(s)

Green and Adams, “Legal Positivism”

• Legal positivism (LP) – existence/content of law depends on SOC facts, not on its merits

• Merits are important, BUT they don’t determine whether law EXISTS

  • A SOC has a legal system if it has certain INSTs

1 – Development and Influence

• Important also in SOC theory – e.g., Marx, Weber, etc. agree that law = SOC fact

• That existence of law depends on facts and not merits is a thesis about RELAT among laws, facts, and merits, not about individuals relations

  • Therefore, e.g., many “natural law” doctrines aren’t contra LP

2 – The Existence and Sources of Law

• All SOCs have ways of marking good behaviour, deterring, resolving disputes, etc.

  • BUT SOCs with legal systems are unique

• Bentham, Austin – law = phenomenon of SOCs with SOV; laws = subsets of SOV’s commands; no need to look at whether SOV is meritorious; it’s also:

  • Monistic – all laws have a single form; SOV is ofc limited, but he is limited by non-legal factors (e.g., public opinion)

  • Reductivist – normative language used in stating the law can be analyzed without remainder in factual terms

• These IMPERATIVE theories are now marginal, BUT there’s still the idea (Kelsen disagrees) that legal theory must be rooted in account of the POL system

  • SOV as commander – outdated

  • SOV is a NOR concept – legislator has authority; its not merely “habits of obedience” that explain his authority

    • Genuine obedience requires something more than mere power (classical LP)

  • All laws = commands – too rough

    • E.g., laws giving power to marry – no command here

      • No reductivism here either – legal obligations despite no sanctions

• Kelsen – agrees with monism, but abandons reductivism

  • Singular form and basic form

  • Law = conditional order towards courts to apply X if Y occurs

    • Law is a system of guidance – it tells OFFICIALS what to do in X conditions

      • E.g., “don’t steal” – logical correlate of primary norm which gives the sanctions for stealing

• The issue with this POV – it’s not just X occurs, so Y; there are other factor – legal capacity, jurisdiction of judge, CONST of offense, etc.

• Kelsen – law is NOR order; it isn’t a rule – it’s a set of rules with a unity

  • For imperativalists – unity of legal system = all laws commanded by a SOV

    • Kelsen = all links in one chain of authority

      • E.g., by-law is valid because it’s created by C exercising power unde legislature, which gets power from CONST, which gets from…

        • First CONST is validated by “basic norm”

          • It isn’t a legal norm (infinite regress), nor SOC fact

• Issues with this POV:

  • Doesn’t solve anything – we need to end the circle somehow

  • Draws legal boundaries incorrectly – CAN CONST was created by act of GBR PAR, but GBR law isn’t binding in CAN

• Law isn’t grounded in force, or on a presupposed norm – HLA Hart has a SOLUTION

• Hart – authority of law is SOC; ultimate criterion of validity – SOC rule that exists because it’s actually PRACTICED

  • Law rests on custom = three main customs

    • RoR is the most important of these “secondary rules”

• Ultimate legal rules are SOC norms, but they aren’t products of express AGR/conventions

  • Behavior and attitudes of officials are key

• The ISSUE – a strange reduction = how do we create oughts from the is of consensus?

  • Shapiro – law as social planning

    • Plans issued by those who are authorized to plan for others

      • The issue – no deeper explanation:

        • Plan = setting rules to achieve X ends

          • Ontology of plans becomes part of more general ontology of rules

        • Poorly captures mechanics of law

          • E.g., law against theft – plan that people do not deprive each other? Not really

• RoR – official custom, not a standard shared by the wider...