powerpoint on topic 2 legal positivism

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Transcript powerpoint on topic 2 legal positivism

Jurisprudence LG118, 2012-13
Topic 1
Legal Positivism
Reading: Hart, “Positivism and the
Separation of Law and Morals” (see
• Legal positivism is the thesis that the truth of a
legal proposition or the existence of a law has
no necessary connection to its morality.
• It is not the proposition that morality has nothing
to do with law, or that the morality of law is not a
valid form of inquiry, or that ‘valid’ or ‘posited’
law creates moral obligation, or must necessarily
be obeyed
• It is instead a thesis about the existence of legal
“The existence of law is one thing; its merit
and demerit another. Whether it be or be
not is one enquiry; whether it be or be not
conformable to an assumed standard, is a
different enquiry.”
- John Austin, The Province of
Jurisprudence Determined (1832)
• We can tell what laws are in force in a particular
jurisdiction through ascertaining social facts – for
some, whether a rule is coercively sanctioned,
for others, whether it is subject to social
recognition as law. Both are fact questions
- Law is a matter of what has been posited by
authorities either recognised or capable of so
“positing” rule. Ascertaining the content of law is
not an extension of ethical inquiry. This is the
“province of jurisprudence”.
- The morality of law might still be an important
question, but it is a separate one
Positivism as a legal science?
- How is ascertaining the existence of
social conventions and sovereign
commands different from ascertaining
facts about nature and the physical world?
Positivism as a pejorative term? But it
does not (necessarily) mean that:
- All ‘valid’ laws are morally binding (e.g.
Nazi laws)
- Ethical or moral relativism
“[positivists] never denied that, as a matter
of historical fact, the development of legal
systems had been powerfully influenced
by moral opinion, and, conversely, that
moral standards had been profoundly
influenced by law, so that the content of
many legal rules mirrored moral rules or
principles” [HLA Hart, ‘The Separation of
Law and Morals”
“Secondly, neither Bentham nor his
followers denied that by explicit legal
provisions moral principles might at
different points be brought into a legal
system and form part of its rules, or that
courts might be legally bound to decide in
accordance with what they thought just or
best …
“… [they] would have recognized that a
statute, for example, might confer a
delegated legislative power and restrict the
area of its exercise by reference to moral
principles.” Ibid
[ie morality might be a criterion for valid law,
but only through the law [eg Constitutions]
Development and influence
- The importance of Bentham’s utilitarian
ethic: natural rights as “nonsense on stilts”
- The persisting influence of positivism – law
as a matter of “social construction”
The “pedigree” thesis: legal validity is a
function of social facts – the origin or
“pedigree” of the rule in certain events,
facts, conventions, etc.
law is … “…an assemblage of signs declarative
of a volition conceived or adopted by the
sovereign in a state, concerning the conduct to
be observed in a certain case by a certain
person or class of persons, who in the case in
question are or are supposed to be subject to
his power: such volition trusting for its
accomplishment to the expectation of certain
events which it is intended such declaration
should upon occasion be a means of bringing to
pass, and the prospect of which it is intended
should act as a motive upon those whose
conduct is in question.”
- Bentham, Of Laws in General (1782)
John Austin – the legal validity of a rule derives
from its origin or “pedigree” in the command of a
- Departure from history of viewing law as an
expression of custom or reason. Prior to Austin,
legal inquiry primarily a branch of moral and
political inquiry. Under the Common Law
tradition, judges had “discovered” the law which
existed before any attempts to express it.
• What is “sovereign command”?
- “Command” a wish that something be done or
not done
- Rules are general commands applying to
- Positive law those commands ‘posited’ by a
- The sovereign is the entity that habitually
receives obedience from most people, and does
not obey any other
• What or who is the sovereign will depends
on facts rather than political morality
(consider the case of a revolution or a
coup d'état)
• But what are the deficiencies of Austin’s
- the problematic description of the
- an overemphasis on coercion – what
about social recognition? (“habitual
obedience” – is this merely coerced?)
- are all legal rules coercive commands?
- Not all legal ‘rules’ are ‘commands’
The meta- or secondary rules that determine
what are recognised as valid norms “are
not commands habitually obeyed, nor can
they be expressed as habits of obedience
to persons” - HLA Hart, Positivism and the
Separation of Law and Morals (1958)
According to Hart (1907-1992) on the “Concept
of Law”:
Austin provides an inadequate account of
secondary or meta-rules, that determine the
criteria of validity
- these are a feature of modern legal systems,
but they are not merely the expression of
obedience to a sovereign. Instead, they are the
subject of social recognition
Hart – “The situation which the simple
trilogy of command, sanction, and
sovereign avails to describe, if you take
these notions at all precisely, is like that of
a gunman saying to his victim, "Give me
your money or your life." The only
difference is that in the case of a legal
system the gunman says it to a large
number of people who are accustomed to
the racket and habitually surrender to it.”
• Primary rules and secondary rules
The most important type of ‘secondary’ rule is the
rule of recognition–the rule which specifies the
criteria of validity for the primary rules in the
… it “[specifies] some feature or features
possession of which by a suggested rule is
taken as a conclusive affirmative indication
that it is a rule of the group to be supported
by the social pressure it exerts”
The rule of recognition is not a matter of
mere coercion but rather what criteria are
accepted as giving a rule legal force– but it
is nonetheless a question of social fact
rather than of moral inquiry
- Note that it is a social rule for
distinguishing between those rules that
have legal validity and those which do not.
- What is the rule of recognition in Ireland?
“...to say that a given rule is valid is to
recognize it as passing all the tests
provided by the rule of recognition and so
as a rule of the system. We can indeed
simply say that the statement that a
particular rule is valid means that it
satisfies all the criteria provided by the rule
of recognition.” – The Concept of Law, p.
How can we ascertain the rule of
- by analysing the behaviour and
conventions of officials (a fact question)
- Coercion by itself insufficient to create
valid legal rule
- Recognition-centred rather than sanctioncentred
- The “internal point of view”:
“those rules of behavior which are valid
according to the system's ultimate criteria of
validity must be generally obeyed, and ... its
rules of recognition specifying the criteria of
legal validity and its rules of change and
adjudication must be effectively accepted as
common public standards of official behavior by
its officials” – The Concept of Law, p. 116
… “the reality of the situation is that a
great proportion of ordinary citizensperhaps a majority-have no general
conception of the legal structure or its
criteria of validity” – Ibid, p 111.
- Contrast with Austin’s criterion of ‘habitual
• Flaws in Hart’s theory
- Does the rule of recognition enable
officials (i.e. judges) to adjudicate on
individual claims – to manufacture ‘legal
propositions’ – without reference to any
moral standards?
- What about when legal meaning is in
Hart’s criticism of Austin’s sanction-oriented
definition of law. He identified the following
elements of Austin’s theory as deficient
- The idea of law as ‘command’
- The definition of law as emanating from a
- The criterion of obedience …
• Hart summarises Austin’s claim:
“law is the command of the uncommanded
commanders of society – the creation of
the legally untrammelled will of the
sovereign who is by definition outside the
[“Separation of Law and Morals”, p 603]
• This is a “simple trilogy of command,
sanction and sovereign … [similar to] a
gunman saying to his victim, ‘give me your
money or your life’” [ibid]
“ … what is missing in the utilitarian
scheme is an analysis of what it is for a
social group and its officials to accept
rules” [ibid]
… Instead, Hart seeks a recognition-oriented rather than
sanction-oriented criterion for identifying legal validity. Is
the rule recognised (by officials) as binding?
- do they approach rules from the “internal point of view”
- ie do they view it as imposing obligations on them
rather than as merely threatening a sanction?
- Contrast with the situation of a gunman imposing a
coercive command on a victim.
- important: the defect in Austin’s command theory did
not mean that legal validity instead had to be explained
in terms of justice or morals
• Moreover, not all laws are commands –
“they provide facilities more or less
elaborate for individuals for create
structures of rights and duties for the
conduct of life within the coercive
framework of the law … they provide
facilities for the realisation of wishes and
choices”. [ibid, p 604]
Contrast Hart with Austin in terms of the
following examples:
- Why is the Constitution valid law?
- Why is international law ‘law’?
- Religious ‘law’?
… whether a rule is a valid legal rule will not
depend on passive obedience, but the behaviour
and attitude of officials who believe that this rule
imposes obligations
possible criticisms of Hart (refer ahead to topics 2 and
- The fact that officials believe they are entitled to create
law can no more impose an obligation to comply than the
fact that the gunman believes he is entitled to impose
force (the difference is, then, an intrinsically moral one)
- There is no single social rule that explains all moral and
non-moral reasons for judicial decisions. The
determination of outcomes in specific cases will involve
moral adjudication; the basis for identifying what law is
will inevitably start with a proposition about what law
ought to be, or about how society ought to be organised.
• The ‘separability thesis’ (contrast with the
pedigree thesis)
- no necessary connection between the moral
character of a rule and its legal validity (although
as a matter of practical reality, contingent
connections often exist)
- What if the legal criterion incorporates a moral
standard? Is the scope of the legal principle then
a moral question? [example: see reference to
“the common good” in the Irish Constitution.]
- note: the separability thesis means not only
that the morality of law has no bearing on its
validity, but also, that the existence of law does
not create moral obligation – “law may be law
but be too evil to be obeyed”
Hart: the separability thesis is no more
than the “simple contention that it is in no
sense a necessary truth that laws
reproduce or satisfy certain demands of
morality, though in fact they have often
done so”
- The Concept of Law, pp 181-82.
For positivists, legal criteria may include
moral criteria, but this holds out the
possibility of a legal system that has no
moral constraints on legal validity
- for others, there is no such possibility:
adjudication on legal principles always
involves some element of moral
‘Inclusive’ v ‘exclusive’ positivism: all positivists agree
that law may exclude moral criteria, but they are divided
as to whether law may include moral criteria
- Hart envisages that a society’s rule of recognition may
include moral constraints on the validity of law – ie as a
matter of social fact, the rule officials use to identify the
scope of valid law may be, at least in part, a moral rule
[eg constitutional adjudication may involve moral
adjudication on legislative rules]. In other words, the
validity of law may depend on a moral criterion, but this
will depend on whether this moral criterion is, as a matter
of fact, given legal force, e.g as a constitutional
- Again, however, this is a contingent rather than a
necessary connection. It is at least possible that some
legal systems will have no moral constraints on the
validity of law
Exclusive positivists instead argue that legal systems may
never incorporate moral constraints on legal validity
- for Joseph Raz, the existence and content of law can
always be determined by reference to its sources without
recourse to moral argument
- Where a judge makes reference to moral criteria in
deciding a case, this creates new law. In this way,
questions of law may be settled without recourse to any
moral arguments
- applying ‘moral’ standards in law will then be a matter
of legal reasoning rather than moral acumen
- If a legal controversy cannot be settled with reference
to settled legal principle, the law is unsettled; moral
standards in the law invite a judge to consider moral
requirements in determining unsettled questions of law
… for exclusive positivists, the question of
whether a rule is law will always be a
question of facts about that rule, rather
than its moral merit
- to determine whether a certain
proposition is a valid legal proposition, it is
only necessary to ascertain facts about the
sources of that proposition rather than its
moral merit.
• A further contention by Hart – it is true that the content of law may
be unsettled and that judges may well have to ‘legislate’ where the
scope of the words in the law is ambiguous or unclear. However,
this does not necessarily require recourse to moral notions in order
to say what the law is – the judge may well rely on moral notions in
adjudicating unclear law but this connection is unnecessary, and
whether this moral notion is incorporated within the law will still
remain a question of fact. The wider purposes and policies to which
judges appeal, in interpretation are, themselves, also part of the law,
in a wider sense of ‘law’:
- “a decision intelligently reached by reference to some conception
of what ought to be [does not mean] a junction of law and morals”
[ibid, p 612]
- looking to the social purpose of the law is not the same as
exercising a moral restraint on the content of law; this could also be
performed within an ‘evil’ legal system, where the judge interpreted
and applied the law with reference to its (immoral) purpose. Again,
the link to morality in the adjudication of law is incidental and
Kelsen’s pure theory of law
Kelsen sought a theory of law ‘pure’ because purged of all
moral and ideological content. Ascertaining the legal
validity of rules required no moral or political
adjudication: it could be described and analysed as an
independent system.
- The main task for legal theory is how to explain the
normativity (validity) of law without reference to other
areas of knowledge, ethics, political legitimacy, etc. Law
could be described as a closed hierarchy of norms
- The preoccupation is: why do certain events and actions
have legal meaning?
• Kelsen’s answer: a rule has legal validity if
if another legal rules confers this
normative character on it.
• Law is created or modified because a
“higher” legal norm authorises its creation
or modification in this way
• Irish example: Minister conferred with
powers by statute, Oireachtas conferred
with power to make law by the Constitution
• This chain of higher legal authorisation comes to
an end – at some point, there will be not higher
source of legal authority
• Take the example of the Constitution – depends
on no higher form of law as the source of its
• The legal system will take the authority of the
Constitution – the highest source of law – for
granted. This presupposition is “the basic norm”
• at some point, we arrive at an authorising norm
that has not been authorised by any other legal
• This means there is a ‘basic norm’ [grundnorm]
that assumes the validity of the highest legal
source of law
• In every legal system, the authority of the
highest source of law is taken for granted: “the
Constitution shall be obeyed”
• Therefore in every legal system, there is a
hierarchy of legal authorities, with each lower
authority deriving its validity in relation to the
higher one.
• Kelsen’s justification: we cannot derive an ‘ought’
proposition from an ‘is’ observation. Therefore, the
conditions for validity in law cannot be derived from
nature. What is the grundnorm is a question of fact, what
are the valid laws within the grundnorm is, however, a
question of normative consistency with the grundnorm.
• To get an ‘ought’ proposition from a series of events or
actions – e.g. the voting of a law – we have to refer to
another ‘ought’ proposition that gives these events a
normative character.
• Since this chain of justification comes to an end, there is
a point where this ‘ought’ has to be presupposed
• This is a ‘non-reductive’ explanation of legal validity (ie
one which does not rely on any external moral system)
• It is the hierarchy of legal authority that gives legal
systems unity. The pure theory of law allows us to
describe distinct legal systems
- if two legal norms are both derived from one, higher
norm, they are part of the same legal system.
• Kelsen focuses on the systematic character of law: in
order to be legally valid, norms must form part of a
system of norms that is in force in a given place and
• For Hart, Kelsen attempted to ‘reduce’
secondary legal rules into another, more
complex form of primary legal ‘commands’
– this is ‘dogmatic determination’ on
Kelsen’s part.
• For Austin, a single legal system exists
because all the norms within it are
commanded by one sovereign. For
Kelsen, it exists because these norms are
linked in a single chain of authority.
• The basic norm is the norm validating all lower
norms. Why is it necessarily singular?
• Note: efficacy (‘efficaciousness’) is also a
requirement: “a norm is considered to be legally
valid … on the condition that it belongs to a
system of norms, to an order which, on the
whole, is efficacious”
• Therefore, law exists where a) its authority is
connected to a “basic norm” and b) it is
generally followed by the relevant population
• Again, therefore, legal validity linked to social
• The lower legal authority is empowered by the
higher legal authority to ‘create’ law, and in
doing this, it may incorporate moral ideas into
law: “just as everything King Midas touched
turned into gold, everything to which law refers
becomes law … ”
… therefore the moral principle is
merely “translated” into another source of law,
but its validity as law will still depend on its
A peculiar feature of legal validity: the normativity of
law is relativised within itself; we take a freestanding
‘legal point of view’. The basic norm provides this
‘point of view’. An anarchist who disagreed completely
with the legitimacy of law could, if he were a professor
of law, systematically argue about what was valid law
These are “detached normative statements” – we can
argue as if we accepted the basic norm, even if we
believe it to be wrong
Therefore, by accepting the basic norm, we can argue
about the content of law without referring to morality.
• However, Kelsen provides no rational
reasons for accepting the ‘legal point of
view’. It may legitimately be asked how
legal validity can be worked out in the
absence of this justification.
• Main contrast with Hart: the authority of
law is normative, rather than social or
• Conclusion – re-emphasise: positivism is a
theory about the validity (ie the conditions of
existence) of law rather than any moral
obligation it creates.
• Kelsen: “The science of law does not prescribe
that one ought to obey the commands of the
creator of the constitution” [Pure Theory of Law,
p 204]
• Hart: it is this very separation of law and morals
which enables the moral evaluation of law,
because just as the existence of law has nothing
to do with its morality, the morality of a rule has
nothing to do with whether it is legal.
• The main critiques of positivism (anticipating future
• If a ‘legal system’ did not possess certain minimum
moral requirements, it could not properly be described as
such. Law could only be described as such if it advanced
certain minimum human goods.
• The practice and interpretation of law is highly moralised.
Legal reasoning requires moral adjudication
• If law is simply a matter of fact, there leaves us without a
way of explaining the moral duty to obey law.
• Legal theory is a theory of how concrete cases ought to
be decided [Dworkin]. Its departure point is necessarily
the conditions of legitimacy for the imposition of legal
force and obligation. To identify law, we must engage in
moral and political argument