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).
- 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.
- 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).
Last updated April 19, 2006
Created by: Robert C. Koons
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