Legal Positivism (Condensed Notes) PDF

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Detailed notes on Legal Positivism within Jurisprudence combined with key lecture notes as well as information from 'Nutshell' revision guides in one document....

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LEGAL POSITIVISM (1) Morality is a series of other-regarding practical directives. It concerns ‘oughts’ and therefore is normative (although the word “normative” has related meanings in different contexts) (2) Law is similar to morality in that it is a set of practical directives about how we should behave towards others. However, there are differences: e.g. (i) it is artificial (i.e. a product of human artifice); (ii) it is enforced; (iii) it is general in application; (iv) It is specific in substance. Law is enforced in a way morality isn’t. Law is normative (what you ought to do) but also factual and morality is just internal, and is not created through a process. Law is more detailed than morality. (3) We will consider 3 questions: 1. What is the relationship between law and morality? To identify a law you look at commands of sovereign 2. Why should a person obey the law? Because it’s made by sovereign or because it’s just? 3. What should judges (or citizens) do when faced with unjust law? (4) Two positions: legal positivism and natural law (5) Legal positivism: (characterised by 2 thesis) Separation thesis: this is the view that there is no necessary connection between law and morality (a rule can be a law even if it requires conduct that is immoral) Sources thesis: what is and what is not law can be identified by social facts.(and not on the grounds of moral merit) Law is simply rules created by legal officials in accordance with rules in the system that they are apart. (6) Natural law theory: The moral connectivity thesis: an unjust rule cannot be a law (lex injusta non est lex). (Aquinis) (7) Legal Positivism (i) normative or substantive legal positivism. There are good reasons to separate law from morality (Hobbes, Bentham, Waldron) we need law to solve moral conflict. (ii) analytical or methodological legal positivism. Attempts to articulate how ‘ordinary language users’ or ‘legal officials’ understand the legal processes of which they are a part. It is

an attempt to describe the deep generalities – the internal and structural features – of legal orders. (Austin, Hart, Raz) trying to say (iii) Continental or European legal positivism (Kelsen)

Thomas Hobbes (1588-1679) Hobbes, T, Leviathan (Cambridge, Cambridge University Press, 1992, first published in 1651) and Behemoth (Chicago, Chicago University Press, 1990, first published in 1682)

He was a NORMATIVE LEGAL POSITVIST. So believed there are good reasons to separate law & morality (i) Moral homogeneity and moral conflict He believed society is full of conflict. But the state should overcome this conflict. (ii) Behemoth: “His bones are as strong pieces of brass; his bones are like bars of iron.” Leviathan: “esteemeth iron as straw and brass as rotten wood.” (iii) The Law of nature: “it is not against reason that a man doth all he can to preserve body and limbs from death and pain.” Hobbes believes everyone disagrees on morality- so the law of nature is his answer. ‘PRUDENCE- the starting point is everyone would rationally seek their own preservation. So regardless of what we disagree on, we agree on this. (iv) The state of nature: “natural condition of mankind”. It is a world “of war, where every man is enemy to every man” where life is “solitary, poor, nasty, brutish and short.” This is the world without law. Hobbes says we seek our own preservation BUT we are also worried about what others might do. Says we have to be diffident (v) The sovereign: civil incorporation. With a sovereign, we transfer the capacity of will of what we should do to the sov. Hobbes believes this is the only way to find peace. Law is the will f the sov. The will of the sov overrides tradition. Law can have any moral content- it is just the will of the sov. Hobbes says the value we place in our self-preservation means that we must obey the sov’s commands even if we think they’re immoral. (vi) Is Hobbes Authoritarian? What happens when sovereign says to hurt ourselves E.g. the command to commit suicide. (a) failure of the sovereign; (b) adjudication and the laws of nature. See Dyzenhaus and Poole (eds), Hobbes and the Law (2012)- what do you do when sov gives command that goes against your fundamental interests. What should judges (or citizens) do when faced with unjust law? Hobbes. Hobbes doesn’t fully answer the question. But in essence believes we should follow the law.

JEREMY BENTHAM

Bentham and Austin are both similar to Hobbes in regards to their theory of law. Both broadly adopt the command theory of law- where rules emanate from the sov. With Bentham we see a theory v similar to normative positivism of Hobbes. Austin believes command theory of law is plausible due to different reasons than the normative positivist = analytical positivism   

Security is the ‘distinctive mark of civilisation’. – Bentham argued the central aim of law is to provide security. Without it there is a ‘constant, unrelenting and inevitably losing struggle against nature for mere survival.’ ‘Like the most ferocious beasts, men pursue men, that they may feed on one another’ without law. (Postema, Bentham and the Common Law Tradition, 185)- Bentham adopts a starting point similar to Hobbes, problem of disorder, survival. Similar to Hobbes’ STATE OF NATURE.

Bentham, like Hobbs, is a normative legal positivist. They both try to explain WHY law should be kept separate from morality. KEY DIFFERENCE IS Hobbes based theory on self-preservation. Bentham’s theory is based on utilitarianism. Bentham’s utilitarianism: “I have built solely on the grounds of utility.” What is morally just is that which benefits the greatest number. – Utilitarianism- a theory how we ought to act, it is an action or a policy is morally just to the extent it benefits the greatest number, makes most people happy or maximises the amount of economic goods. Based on benefit (greatest good for the greatest number) Bentham’s concept of law: “Law is a (systematically arranged) set of commands backed by threats all of which ... can be traced directly or indirectly to a common sources in the legislative acts of the sovereign whose sovereignty rests on the habit of obedience of the bulk of the community.” Jerry Possemer For Bentham law is commands (orders) backed by the threat of coercion.  FOR BENTHAM Law is the commands of a sovereign ( a political superior which imposes its will on political inferior.)  The commands of a sov are obeyed by a majority of the population.This is called command theory.  1st Bentham’s command theory is similar to Hobbes’ theory of law (he thought law was will of the sovereign)

Bentham is a positivist because he accepts: (i) sources thesis; (ii) separation thesis.  2nd command theory shows Bentham is positivist- as Bentham accepts sources thesislaw emanates from an act of human will. Law has a factual source- this is the act of will of the sovereign  Also accepts separation thesis- says law is law cos its enacted by sov, not because its connected to morality. Condition of law is that it’s created by a sov, not that it is morally just. How do we square positivism with his utilitarianism? Bentham is a normative legal positivist. Bentham says what is a society like without law?  Individuals would conflict and adopt aggressive attitudes towards each other.

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Individuals would tend to think in short term, and tend to not cooperate. They cant plan There would be no rules to predict how others are going to act. Without law there is little incentive for individuals to achieve their goals. Cos at any point what they have achieved could be taken away from them by others.

Bentham says, if we adopt command theory, co-operation can be facilitated- we know what rules we have to comply with (commands of the sov) we can then plan… 1. What is the relationship between law and morality? Law is law cos it’s been made by sov, doesn’t need to have moral value 2. Why should a person obey the law? Person should obey cos it’s in their utilitarian interest to do so. 3. What should judges (or citizens) do when faced with unjust law? (below) For Bentham the primary function of law is to co-ordinate social interaction. Creating the conditions so social life is possible has utility. Anarchy and disorder has lower utility than legal order, which is why people should adopt the command theory of law- (the commands of a sov), it increases happiness. This is how utilitarianism justifies his command theory.

 Law allows individuals to plan for the future and achieve the expectations. It ‘stabilises expectations’. Bowring: ‘once a stable framework of social relations is established and expectations fixed upon it..., it is possible to alter, reform, and revise it better to meet the demands of maximal general welfare.’ (quoted from Postema, Bentham and the Common Law Tradition p. 189) Laws allow us to plan, predict and achieve their expectations- for this reason Bentham argues law (commands of sov, stabilise expectations) – with law we can roughly predict others are going to act in accordance with the law.  ‘citizens are loyal because of the ability of the [law] to co-ordinate...interaction, not because of their intrinsic appeal.’ (Postema, Bentham and the Common Law Tradition, 315). Therefore, Bentham adopts a form of normative legal positivism. So law can have any content- it is just the commands of a sov-Bentham believes we have obligation to obey.

What should judges (or citizens) do when faced with unjust law? An unjust law causes unhappiness/lowers welfare. Hobbes:  Didn’t come up with satisfactory answer Bentham does offer some kind of answer…

Bentham argues: 1. Primary role of judge is to mediate between parties in dispute- in many disputes that won’t happen. – Expensive, time consuming. 2. Where mediation creates less utility than imposed settlement judge should only then turn to commands of sovereign- positivistic ( apply law even if unjust) 3. Judge has to hold application of legislation, however where it would violate the principle of utility to apply law- judge according to Bentham, one may deviate from particular legislative code in scenario where applying the code creates injustice. Sort of creates balancing between positivism- judges should apply law, and utilitarianism- judges should do what’s morally just.

(5) Bentham on adjudication (Postema, ibid, chapter 12) Why should natural law and common law be rejected?  Bentham argued common law should be rejected as doesn’t promote stability.  Common law is dog-law: - it’s retroactive, you’re never quite sure what law requires of you until judgement has been made. It punishes you when done wrong even if you didn’t know you had done wrong at point of doing it. ‘When your dog does anything you want to break him of, you wait till he does it then beat him for it. This is the way you make laws for your dog: and this is the way the judges make law for you and me. They won’t tell a man beforehand what it is he should not do...they lie by till he has done something which they say he should not have done, and then they hang him for it.’ (Postema, Bentham and the Common Law Tradition, 277) Common law and natural law Bentham said adoption of the command theory of law was essential to ensure the flourishing of modern societies. ‘...[were] an ideology which in his view shackled, rather than liberated, human reason. Shrouded in mystery and tradition-worship, it was pathologically opposed to reform, and it induced and perpetrated mental slavery of the people.’ (Postema, ibid, p. 311) – another reason Bentham support command theory, as it swept away much of what came before.

He sought to sweep away old natural and common law with a scientific legal system ^^ quote.

JOHN AUSTIN  Accepted Bentham’s theory in essence- you see sovereigns commands.  Analytical legal positivism- creates a more scientific theory of law. Attempts to explain the essential features of a legal order.  Attempt to describe/explore laws form and structure of legal orders. Austin says if you look at legal orders around world, they have in common what bentham said they have – said you will see sovereigns, commands, orders backed by sanctions, and habitual obedience to that sov and commands.

So effectively adopts the command theory of law, but he doesn’t argue there is value to having the command theory of law like Bentham and Hobbes argue. But argued this is the structure of legal systems around the world. Austin calls this positive law. Commands are: (i) an imperative; (ii) command is an imperative that is backed by a sanction; (iii) enforced by a political sovereign; (iv) The bulk of the population obey it (i.e. habitual obedience). When a sovereign issues a command, it is a law “properly so-called”. It should be distinguished from other sorts of rule we called “laws”, which bear only some resemblance (e.g. by analogy or metaphor) to the commands of the sovereign. Hence:

Laws properly so-called

Laws of God Human Laws:

(issued by relalation) Positive Law/Positive Morality

Positive morality- things like customs Positive law= commands of a sovereign

Laws improperly so-called biological laws)

Laws by analogy (e.g. laws of chess)/Laws by metaphor (e.g.

He’s trying to isolate the different components of legal system- analytical.

PROBLEMS with Austin’s command theory.  We have seen Austin is attempting to describe legal structure (its form)  Criticism = he has failed to isolate central features of legal order. The Sovereign (HLA Hart, The Concept of Law (Clarendon Press, 1961) chapter 2)  Queen = sov of UK. But queen in parliament / parliament itself is responsible to the uk population, so is the uk pop sovereign over itself? 

When sov dies laws continue. So Hart suggests there is quite a complex rule structure how rules continue on. There is a rule structure that fixes the role of a sov, Hart says understanding rule structure is essential to understanding law. Even sovereigns are governed by rules. There are rules of possession, even within sov system there seems to be a series of rules which define the role of the sovereign

Obligations and being obliged (The Concept of Law, 79-88 (for further discussion, read Kramer, M, In Defense of Legal Positivism (Oxford, Oxford University Press, 1999) 98-101))  Hart says Austin fails to distinguish between legal obligations and being obliged to follow a command.  Hart says: if gunman holds you and says open safe=this is a command, order backed by a sanction which you would normally obey (because you fear for your life)

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Hart says Austin fails to analytically make distinction between fair coercion and law. As Austin can’t distinguish between gunman and sovereign. This is key deficiency for Austin’s command theory.

HLA HART, The Concept of Law (Clarendon Press, 1961)

Claims to be able to solve problems of Austin’s command theory… First main claim…

Law ought to be conceptualised from the internal participant viewpoint Means ppt within a legal order have a very different view of law to that advanced by Austin. Austin simply saw law as commands of a sovereign enforced by threats.. Hart tries to conceptualise law from those you participate in the legal order. Hart advances two ppt view point…. 1st way of conceiving ppt. (i) JL Austin. How to do Things with Words (Clarendon, 1962). Hart’s aim was to elucidate the meaning of the word ‘law’ for ‘ordinary language users’. –Hart tries to say- what do we internally think about law? As ordinary language users…What conceptual distinctions does the ordinary man make about law? (ii) Analytical legal positivism should attempt to elucidate the conceptual distinctions embedded within the social practices of legal officials. He tries to conceptualise law from the ppt of a legal system, the judge the sov, the bureaucrat. Hart thinks by trying to explain distinctions of law made by the legal official you can gain some insight to the nature of legality. What do legal officials think of it? Hart tries to unpack what the legal system is doing. Hart’s concept of law: the union of primary and secondary rules. Hart thinks a legal system is a union of primary and secondary rules. (i) Primary rules: basic substantive obligations operate as guides to conduct. All obligations that members of society have. E.g. do not murder. Hart said if legal system was only primary rules it would have number of defects, chapter 5 concept of law. DEFECTS CAN BE LISTED AS A NUMBER OF QUESTIONS: Would be a number of defects: How would we change laws? how would we resolve disputes? how would we know if a primary rule was a rule of the legal system or a rule of morality.

How do we deal with uncertainty? Hart argues developed legal systems have secondary rules that resolve these defects.

(ii) Secondary rules (a) 1stly Rules of Change; (b) Rules of Adjudication ;(govern how judges are to resolve disputes (c) Rules of Recognition . A rule of recognition permits us to ascertain those primary rules that are legal rules and allows legal rules to be distinguished from nonlegal rules (rules of morality). Legal rules are legal because they are enacted in accordance with rule of recognition, not cos they are moral. One of rules of recognition= e.g. in UK laws enacted by queen in parliament (these are the leally valid rules which comprise the legal system (ii) Hart’s positivism: (a) Law is created by virtue of the rule of recognition , which is a social rule (adopted and accepted by legal officials), and thus law is created as a matter of social fact; (b) That a rule is moral does not mean that it is legal. A rule is a legal rule cos it’s created by legal officials in accordance with the rule of recognition. Hart adopts separation thesis cos of this. Law is a not law cos its morally just, law is legal cos ^^

The relationship between law and morality for Hart “Not only may vast numbers be coerced by laws which they do not regard as morally binding, but it is not even true that those who do accept the system voluntarily must conceive of themselves as morally bound to do so, though the system will be most stable when they do so. In fact, their allegiance to the system may be based on many different considerations: calculations of long-term interest; disinterested interest in others; an unreflecting inherited or traditional attitude; or the mere wish to do as others do.” (COL, 198) For HART: Laws are those rules created by rule of recognition. Created by Legal officials acting within accordance with the rule of recognition. Morality is other sorts of law. 1. What is the relationship between law and morality? Laws are legal rules created by legal officials in accordance with the rule of recognition 2. Why should a person obey the law? Quote above. For citizen’s hart is says there is all kinds of reasons they might want to obey the law. He is more interested in finding the existing conditions for the existence of a legal order. He says this is the union of primary and secondary rules. 3. What should judges (or citizens) do when faced with unjust law?

The internal point of view and Hart’s concept of law R, Dworkin, Law’s Empire (Oxford, Hart Publishing, 2004, first published in 1986) chapter 4: Hart’s legal philosophy is redescribed as ‘conventionalism’. Dworkin rebrands hart’s legal positivism as conventionalism. Dworkin is talking about hart’s legal positivism. Why does Dworkin do this?

He’s saying for Hart, legal officials within a legal system accept a series of conventions, which establish how a legal system is going to work. Legal officials accept these rules as conventions that govern the system. So the rule of recognition is s fundamental convention about what constitutes a valid law within a particular legal system. Legal officials within any legal order accept the conventions upon which the legal order is founded. They adopt them and accept them as defining their roles and governing their conduct. This is clarified my MacCormick… See also N. MacCormick HLA Hart ...