Legal Positivism 1 Law As A Social Practice Notes
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WEEK 1 LEGAL POSITIVISM I: LAW AS A SOCIAL PRACTICE Introduction to Legal Positivism Legal positivism is a doctrine about the nature of law according to which (a) all laws are laid down or posited by a certain person or procedure, and (b) something counts as a valid law of a certain system in virtue of being laid down by a certain someone or according to a certain procedure. In other words, the legal validity of a rule or decision depends on its sources (e.g. where it has come from, and how, and when), rather than its merits (e.g. whether or not it is a good rule or decision). This way of understanding law was made famous during the nineteenth century by the 'command' theories of law espoused by Jeremy Bentham and John Austin. According to these theories, something is law if it has been commanded by a Sovereign, and is backed up by the threat of a sanction in case of non-compliance. Command theories help us to understand the posited nature of law, allow us to identify and understand what law is before considering whether it is morally good or bad, and foreground the role which coercion plays in the law, and so furnishes us with a legal theory which attempts to tell citizens subject to the law exactly the sort of thing they are dealing with. Unfortunately, however, the command theory makes it difficult to understand how legal systems work as a system. Each law is a law because it is posited by an act of the Sovereign, and so each law appears to be self-contained and self-sufficient, unified only in that all laws have in fact been commanded by the present Sovereign in the way explained by the command theory. This, however, fails to explain the way in which legal systems seem to have a life of their own, independently of the lives of the Sovereigns, or legislatures, which posit their laws. Legal systems remain in force, and are capable of altering the laws which comprise them, and of creating new laws, across time, and they retain these characteristics even when one Sovereign dies or one legislature dissolves and a new one ascends to the throne or is reconvened. Twentieth century legal theorists H.L.A. Hart and Hans Kelsen both criticised these weaknesses in Austin's command theory of law, and, in their own separate ways, set out to explain what it is that unifies laws into legal systems, and which allows legal systems to regulate their own creation: to determine which laws belong to the system, alter existing laws, and make new ones, according to their own internal procedures for so doing. How can legal systems pull off this amazing trick of regulating their own composition and creation?
The 'Internal Aspect' of Law Another important way in which both Kelsen and Hart tried to improve upon Austin's legal positivism was to give a better account of law's "internal aspect". Austin presented those who were subject to the law as being passive in the face of an external force: law was the command of a Sovereign backed up by sanctions in the face of which the population had a habit of obedience. In Hart's view, this account of law only explained how law looked on the surface, and from the 'outside' and was akin to an account of cars stopping at traffic lights such as a Martian sociologist might offer. A Martian sociologist could state that cars have a habit of stopping in the face of traffic lights turning red. This way of looking at the situation, however, fails to tell us how things appear 'from the inside' to those who use legal rules to guide their conduct in their daily lives. Cars do not merely happen to have a habit of stopping at red lights. Rather, those people in the cars understand that there is a rule requiring them to stop which they are using to guide their conduct, and which they take as a reason for stopping when the traffic light turns red. The point which Hart wanted to make was that legal theorists will miss some of the most important things about the
nature of law unless they understand law as it is understood by those who are subject to it and use it as a guide to conduct. Hart dubbed this insiders perspective the internal aspect of law, and insisted that law had to be understood taking into account this internal point of view if it was to be understood adequately. Hart and Kelsen gave different accounts of this internal aspect of law, but both wanted to stop short of turning it into an intrinsically moral aspect, which would cast doubt on their legal positivism. According to Hart and Kelsen, then, legal theorists must understand law from the internal point of view, but that point of view must not be so internal as to entail a moral endorsement of the law. For Hartian and Kelsenian legal theorists, having an internal attitude toward the law, then, does not entail accepting the law as a morally good thing which creates moral reasons to do as it says because it says so.
General Reading Primary texts
•• Hart The Concept of Law, esp. Preface and Chs. 1-7 (Note: See 2nd Ed. with Postscript)
3 main questions prompt the discussion of what is law: (1) How do laws differ from orders backed by threats? (2) What is the link between morality and the law i.e. is an unjust law still a law? And (3) What is a "rule" (e.g. as opposed to merely convergent habitual behaviour) and to what extent is law "an affair of rules"?
Austin defined law by the "command model" i.e. laws are just orders backed by threats or habit, issued by a person/institution that is generally obeyed. When defining legal control, orders from officials cannot be the primary way the law functions i.e. the law doesn't function primarily by officials going around and telling everyone of every single act that they are required to do- no state would have the resources to do this. Where officials do communicate the rules to individuals it is the exception. Normally laws are made by general forms of directions (e.g. statutes). Therefore legal control is primarily control by directions that apply to general classes of people and prescribe general types of behaviour. The party issuing the order must be habitually obeyed by the population and there has to be a belief that the sanctions for non-compliance will be effected. Hart lists several objections to Austin's point of view: These are categorised into the "content", "mode of origin", and "range of application" of laws.
Content: While criminal law and tort law do bear an analogy to the command model, many areas of law do not. Rules that confer legal powers on people e.g. by allowing them to contract and giving effect to their contracts, or the power to make a will, is not demanding any particular type of behaviour and there is no sanction involved. Some try to get around this objection by associating powerconferring rules with coercive rules by suggesting that nullity (e.g. from failure to comply with the formalities of the Wills Act) is the sanction resulting from non compliance with the rule. Hart denies this, saying that it makes no sense to speak of nullity as a sanction since power-conferring rules are not trying to suppress a type of behaviour (as criminal laws do), but instead are setting limits to the power conferred. E.g. the rule that only a majority vote in parliament will allow a bill to pass cannot be regarded as punishing failure to obtain a majority. Another attempt to counter the "content" argument (used by Kelsen) is to say that laws are really just directions to officials to impose a sanction if an act is performed i.e. the law doesn't prohibit murder, but merely requires judges to imprison those who murder i.e. murder is an "if" clause in a direction. This would
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