#3523 - Legal Positivism - Jurisprudence

Positivism

• Law is a matter of social fact, separate & prior to its evaluation

• Moral claims & evaluations are brought into the process in the 2^nd stage: 1^st is to identify law as a social fact and 2^nd 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)

1. whether legal validity of a rule/norm can be separated from moral evaluation of its content

2. whether legal status of a rule or norm system can be separated from moral evaluation of its content

3. 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

1. Prohibit

2. Command

3. Permit action

4. 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:

1. 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.

2. 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

• Law is best understood as orders of a sovereign backed by threat of sanctions – one man is forced to do what another tells him b/c he threatens him w/unpleasant consequences if he refuses

• Tying law to de facto commands of a Sovereign “humanises” it. Law is just what a given person/institution happens to have commanded. It doesn’t come to us from God or some other “higher” source – it is de facto commands of a person/group of people who have assumed political power for the moment.

• Really emphasised the coercive nature of the law

Hart’s Response to Command Theory

• Command theory weaknesses:

1. Not all laws are enacted nor are they all expressions of someone’s desire like the general orders (custom)

2. Laws, even if deliberately made statutes, need not be orders given only to others (they often bind the legislator)

3. Must enacted laws really express any legislator’s desire, intentions or wishes? (e.g. would those who passed the Finance Act really understood every each provision)

4. The whole conception of supreme and independent sovereign habitually obeyed, on which the model rests, is misleading, since there is little in the legal system that it actually corresponds with

5. Concept of sovereign creates difficulty in explaining continuity&persistence of the law (when someone new takes over, that person has no history of being habitually obeyed)how would either explain revolution?

6. Significant aspects of legal system are lost if one looks at it in this way

1. Primary v secondary rules

• Primary rules apply directly to citizens but secondary rules govern operation of the rule system.

1. Rules of change – empower people to create new primary rules, incl. authorization of legislative bodies & empowerment of individuals to create new rights/duties through contracts, wills & trusts

2. Rules of adjudication – empower individuals to make authoritative determinations of whether, on particular occasion, primary rule had been broken

3. Rules of recognition– a set of criteria by which officials determine which rules are/aren’t part of legal system.

• RoR symbolizes the basic tenet legal positivism; i.e. there are conventional criteria agreed upon by officials for determining which rules are/aren’t part of legal system – this points to separation & identification of law from its moral evaluation & separation of statements about what law is & should be.

2. Feeling obliged v having an obligation

• Legal system is different from & better than a rule over a frightened populace; e.g. Taliban ruling Afghanistan. We feel obliged to act in a way ordered by gunman & will stop complying as soon as threat is gone, whereas having an obligation under valid normative system is psychologically more complex & we act b/c believe we ought to.

3. Rules v habits

• Difference resides primarily in perception of participants outside observer might have no way of distinguishing b/w someone acting in particular way out of habit or obedience, which is why we need internal POV + external POV.

• Habit = describes behaviour;

• Rule = takes on a role of justification and becomes the basis for criticising deviation (acquires a normative role).

• Internal aspect of rules – hermeneutic approach, gives priority to trying to understand how people perceive their situation (contrast w/scientific onerelying on objective data). Law is a social institution set up to achieve human purposes & give advice to citizens, so can only understand purposive behaviour & normative rule following it from POV of participant in that system. MacCormick – refinement of Hart’s IPOV rather than a criticism 2 separable elements are present within Hart’s theory& should be considered individually:

1. Cognitive element – IPOV can be cognitively internal; i.e. psychological result of perception, learning and reasoning –the kind which legal theorists need to be able to understand how rules are perceived by those using them to guide conduct.

2. Volitional element – IPOV can be volitionally external; i.e. capability of conscious choice & decision - you put your will/volition behind the rule

Can have the 1^st w/out the 2^nd but not vice versa – can understand others are following a standard w/out being committed to upholding it or willing the standard yourself. But cognitively internal POV is parasitic on the volitionally internal use b/c unless some people in any given legal system willed the upholding of various legal standards (e.g. RoR) there would be no legal system.

• Finnis – for Hart, accepting rules incl. RoR from IPOV needn’t entail moral acceptance, b/c people can accept them for many reasons, incl. calculations of long term interest. E.g. – reasons why we show up to the tutorial – believe it’s a great subject, don’t want to be told off etc. for Hart, any of these suffice b/c, as long as we accept there is a rule, we have IPOV. This isn’t good enough – should instead differentiate b/w central&more peripheral cases of IPOV. E.g. anarchist judges and those who...