Phl 347
Lecture 23: Legal Positivism

Two Central Theses

• Issues of legal validity must be strictly separated from questions of morality. What the law ought to be has nothing to do with what the law actually is.
• There are irreducible facts about political society that can only be expressed in the vocabulary of the law. The study of the law is autonomous.

Broad and narrow positivism

• Broad positivism = moral/legal conventionalism. There is only the positive law: there are no objective, universal facts about morality, about what the law ought to be like. [Hans Kelsen]
• Narrow (legal) positivism: in addition to the positive law, objective moral facts may exist.

Two kinds of (narrow) legal positivism

• Utilitarian positivism: there are no natural human rights, nothing like a natural law. The only moral standard is one of the desirability of the consequences of the law. [Bentham]
• Non-utilitarian legal positivism. There is something like natural law (universal human rights, universal moral principles).

Common ground

• A positive law is binding even if it is supremely immoral.
• No principle of morality is legally binding until it has been enacted into moral law.
• That a statute is legally binding does not settle the moral question of whether we ought (morally speaking) to obey or disobey the law.

Soft vs. Hard Positivism

• Soft positivism: there is no necessary connection between legal validity and moral truth.
• Hard positivism: there is, of necessity, no connection between legal validity and moral truth.

What is positive law?

• The Command Theory (Bentham, Austin)
• The Social Convention Theory (Kelsen, Hart)

The Bentham/Austin Command Theory

• X is the superior of Y if and only if Y is in the habit of obeying X, and not vice versa.
• A collection S of human beings constitutes an independent political society just in case there is one member X (or some compact body X of members) of S that is the superior of all of the other members of S, and there is no human being Y outside of S who is the superior of X. In such a case, X is called the sovereign of society S.
• A command from X to Y is the expression, in words or actions, of the desire of X that Y act in a certain way, backed up by a stated or implied threat to impose some penalty on Y if Y does not comply.
• A general command is a command that is issued to an entire class of individuals and that is intended to stand for an indefinite period, until revoked by its issuer.
• A positive law is a general command issued by the sovereign of an independent political society to some or all the members of that society.

Some problems with the command theory.

• The theory applies clearly to an absolute monarchy, but is much less clear when applied to a society where some group is the sovereign.
• What exactly does it mean to obey a group?
• Can a group issue commands (in Austin's sense) -- can a group share a single desire?
• H. L. A. Hart argues that the command theory cannot distinguish between a legitimate government and an armed robber ("give me your money or else"). The "Gun Man" objection.
• Parliamentary or constitutional law, laws governing the actions of the sovereign, do not count as law at all.

Conventionalist Versions of Legal Positivism

• H. L. A. Hart (Oxford)
• Hans Kelsen (Vienna, UCLA)

Law as a System of Rules

• Laws constitute a hierarchical system of rules.
• Primary rules are like Austin's commands,
• Secondary rules concern how primary rules are recognized as valid, changed, applied to particular cases, and enforced.

Legal Validity

• A law is valid or binding if it belongs to a system of laws that is in force in a particular society.
• The validity of a system depends on the validity of its most fundamental secondary rules:
  • "Grundnorm" (Kelsen)
  • Ultimate rules of recognition (Hart)

Validity of Grundnorms

• It is generally followed, and
• most people accept it as valid/binding, i.e.,
  • they follow it because they believe it is valid, and
  • they criticize or find fault with those who deviate.

The "Internal Perspective"

• Legal theory involves taking the "internal perspective" of one who accepts a given system as valid.
• This distinguishes law from sociology, which always takes the "external perspective" of the objective scientist.

Some Philosophical Problems with Conventionalism

Does Law Reduce to Sociology?

• The validity of a system of laws seems, on their acccount, to be a matter of sociological fact: which system (which Grundnorms) to most people treat as valid?
• This threatens to collapse their distinction between the disciplines of law and sociology.

A Circular Definition?

• Validity is defined in terms of what most people believe to be valid.
• If we don't already understand what legal validity means, we can't understand their definition.

What are Rules (Conventions)?

• It can't be a mere pattern of behavior, since that leaves no room for the possibility of someone deviating from the norm or breaking the rule.
• It can't be a mere linguistic entity, like a sentence or statement, since these must be interpreted (by a linguistic or semantic rule).

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