Legal positivists

Have you ever wondered whether law is able to extract itself from the idea of "right and wrong" (hence morality)? Do social norms (i.e., laws that are not written black and white and officially affirmed by the sovereign) count as law? What happens when an unjust law is being established by a sovereign - do citizens have the obligation to follow it?


Image extracted from "Legal rights are not all right: when morality and the law collide"

They are sometimes being criticized as philosophical taxidermy who thinks it 'drains the law of its moral guts and lifeblood'.

Key idea perpetuated: validation doesn't mean obedience

Over time, there is an increasingly sharp division between 'hard' and 'soft' positivist


Definitions

Hard positivist - the validity of a norm does not depend on morality, only occasional incorporation of morality in legal criteria

Soft positivist - allows incorporation of morality into legal criteria through the rule of recognition


Jeremy Bentham (1748-1832) - Utilitarianism (the art of legislation)

  • aims to provide a single and complete law that expresses the legislative will

  • the sovereign command is not limited to one person (it can be public international, constitution law)

  • sovereign power is not unlimited

  • expounds complex 'logic of will'

  • a sanction will follow failure if the person fails to obey the command

  • nature of law: rewards ('alluring motives') and punishment ('coercive motives')

John Austin (1790-1859) - Command theory of law (science of law)

  • written The Province of Jurisprudence Determined

  • narrows to criminal law

  • God law - set by God

  • positive law - set by the sovereign or in pursuance of legal rights

  • positive morality (not set by men) - laws by analogy and metaphor

  • sovereign power is unlimited

  • sanction: mere wish of the sovereign is not going to be followed unless there is a pain inflicted if disobeyed

  • emphasis on whether a legal duty is present rather than justifying why a law should be followed - hence invited criticisms of his rigidness

H.L.A Hart (1907-92) - Soft positivism

  • written The Concept of Law

  • believes that law is needed in order to survive in a community. Below are the five features of 'human frailties':

  1. human vulnerability (to physical attacks)

  2. approximate equality (among humans)

  3. limited altruism (we are selfish)

  4. limited resources (on Earth)

  5. limited understanding and strength of will (the limited trust and reliance we have for each other)

  • law is more than forcing someone to do something with a sanction/punishment

  • there is a difference between 'being obliged' and 'having an obligation'

  • For a law to form, there needs to be 'rule of recognition' (which means officials acknowledge the validity of a rule 'from the internal point of view'). But for a legal system to exist, obligation rules (laws) must be generally obeyed by the public and recognized by officials. Hence, a law can be valid but not effective (as it may not be popular among the citizens) as long as the legal system as a whole is valid.

  • Morality/judgment of 'right' and 'wrong' is independent of the validity of the law. A judge may detest the rule he is applying but by accepting the validity of a rule, the legal system is still present.

  • 2 types of obligation (rules):

  • the primary rule of obligation: primitive societies where violence/wrongdoings need to be repressed

  • secondary rule of obligation:

  1. rules of change - legislative/judicial changes on certain rules

  2. rules of adjudication - judges can decide on cases in breach of rules

  3. rules of recognition - decide on the validity of all the rules in a legal system


Hans Kelsen (1881-1973) - Pure theory of law

  • law is about a series of norms (what/who ought to be)

  • a legal norm differentiates from others because it is backed up by a sanction

  • But how is a robber's command different from an official's order then? - There is no 'lasting effectiveness [of a norm] without which no basic norm is presupposed'. No higher norm can be derived from a robber's command; hence, people are not ought to comply with the orders.

  • effectiveness of a law is a part that constitutes the validity of a law

  • hence, in order for a norm to be valid, it needs to be strictly derived from a higher norm (forming a hierarchical order).


❓ What is the highest norm?

Basic norm (Grundnorm): one should behave as the first constitution prescribes

  • What if the basic norm is no longer effective?

  • If the basic norm attracts no general support, the legal system has collapsed. (This provides justification for revolutions - e.g., Pakistan, Uganda)


Joseph Raz (1939) - Law as a social fact

  • law is value-neutral

  • the law does not have any moral consideration, but legal reasoning does

  • argued that there are three principle claims made by legal positivists:

  1. 'Social thesis' - law can be seen as a social fact (excluding the consideration of morality)

  2. 'Moral thesis' - morality is applied depending on the context in which the law is set in

  3. 'Semantic thesis' - 'right' and 'duty' means differently in the moral and legal context

  • three elements to identify a legal system:

  1. efficacy

  2. institutional character - law is connected with an institution

  3. sources - where the law is derived from

  • rule of law is a negative virtue - a formation of law creates the risk of it being abused by powers of authority

  • therefore, even when a legal system is fair and just, people have no 'prima facie' duty to obey in it

Scott Shapiro - Planning Theory of law

  • legal rules are essentially 'generalized plans'

  • The existence of good and bad plans in life


 

Credits


The information provided above is all credited to Raymond Wacks's Philosophy of Law: A Very Short Introduction.


P.S. If you are really interested in exploring the world of jurisprudence (on 'What is law?"), make sure to check out his book!!


#jurisprudence #notes #introduction

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