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Legal Positivism Notes

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Legal Positivism

FHS 2012




Law is a matter of social fact, separate & prior to its evaluation Moral claims & evaluations are brought into the process in the 2nd stage: 1st is to identify law as a social fact and 2nd is to ask what the law should be Separation thesis

Proper description of the law is a task that needs to be kept separate from moral judgments re value of the present law &normative questions as to how it should be developed or changed

Operates at one of 3 levels (which overlap but raise distinct issues) a) whether legal validity of a rule/norm can be separated from moral evaluation of its content b) whether legal status of a rule or norm system can be separated from moral evaluation of its content c) the role of moral standards in constructing a theory of law No necessary connection b/w law & morality ? distinguish 2 interpretations 1) exclusive legal positivism- moral criteria is not sufficient or necessary condition for legal status of a norm;existence & content of every law is fully determined by social sources.
= Austin - existence of the law is one thing, its merit or demerit another. Whether it be or not be is one enquiry, whether it be conformable to an assumed standard is a different enquiry. 2) inclusive legal positivism-moral terms can be part of necessary & sufficient criteria for legal validity in a legal system but use of such criteria is contingent on & derived from choices of legal officials rather than as part of the nature of law(MacCormick, Hart's postscript)
= allows to accept a lot of Dworkin's criticism w/out abandoning core tenets of doctrine
= Hart - social institutions can be studied in objective fashion, free from bias & ideology. Such separation doesn't deny that something identified as a valid law or valid legal system may sometimes be sufficiently evil or unjust that it shouldn't be obeyed.
? But law is a practice so infused w/moral sounding claims (e.g. citizens ought to do X) & terminology (e.g. legal rights & obligations) that a strictly descriptive theory of law seems either difficult or inappropriate for the same reason that descriptive theory of morality would sound strange.
? But the process of determining which norms are legally valid often seems to involve moral analysis. Morality plays so many roles in legal practice that narrow understanding of legal positivism's separation thesis would almost certainly be false. Bentham's Command Theory

"What is law" ? Austin derived ideas from Bentham and, whilst both had ideas of sovereign & commands, Bentham expounded his more subtly & flexibly + appreciated law was more than just unqualified commands addressed to individuals; e.g. shut the door (usually conditional etc) + looked at aspects of law neglected by Austi

His definition of law included a command idea similar to Austin but can't be identified w/it b/c Bentham only sees commands as one of 4 aspects which legislator's will expressed in a law or mandate may bear to the acts w/concern to which he's legislating ? acc to him, laws must either a) Prohibit b) Command c) Permit action d) Refrain from action
? Division into imperative & permissive?

He appreciated laws are more complicated than unqualified commands addressed to individuals to do a particular act, such as shut the door - they're usually conditional, requiring or permitting certain kinds of acts only under certain circs

Any natural law theory is vulnerable to: a) anarchist danger -people will mix up law & morality, and judgements of what law is &what it ought to be, and think b/c something doesn't live up to alleged "higher" moral standards, it's not "really" law. For Bentham, instead we should say - this is law, it is bad and we should do something about it. But 1 st stage, identifying it as law, should be done descriptively, not thinking about what ought to be.
? E.g. people might think the law on immigration and asylum seekers in the UK is so morally problematic that it's not really law at all. b) conservative danger- danger that people will mix up descriptions of law as it is & evaluations of law as it ought to be, and will say, "b/c this is law already, therefore it is as it ought to be". This assumption, that law as we have it is somehow natural, or inevitable, or must be morally correct, sounded major alarm bells for Bentham. The conservative danger is that by not separating the question "is it law?" from "is it any good?" we will not be able to criticise the law and to see its flaws. So we must not mix up law as it is and law as it ought to be. Austin's Command theory

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