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MODULE 1 - INTRODUCTION ------------------------------------------—--------------------------------------------—-----------
David Foster Wallace This is Water The reading begins with a metaphorical anecdote about two young fish encountering an older fish who asks about the water, revealing that the most obvious and important realities are often challenging to perceive and articulate. The author compares water to the vast compass of life and its realities. David Foster Wallace asserts that banal platitudes can hold significant importance in the day-to-day struggles of adult life. He admits to the automatic, self-centred beliefs that everyone is the centre of the universe, highlighting the default-setting hard-wired into human nature.The author rejects preaching about virtues, emphasizing the choice to shift from a self-centred default-setting. One who can alter this default setting is considered “well adjusted”. "Learning how to think" means gaining control over thoughts, choosing focus and meaning. A liberal-arts education aims to prevent a passive, unconscious, and isolated adult life by actively avoiding the default-setting of self-centeredness. The purpose is to teach individuals how to think — to exercise control over thoughts and choose what to pay attention to and how to derive meaning from experiences. The ultimate goal is to avoid going through a comfortable, prosperous adult life dead, unconscious, and enslaved to the default-setting of self-centeredness. The author details a common yet frustrating experience of grocery shopping after a demanding workday. The individual faces challenges such as heavy traffic, a crowded and unpleasant supermarket environment, and a lengthy checkout process. Through these everyday hurdles, the author highlights the potential for individuals to default to a self-centered perspective, feeling irritated and blaming external factors. However, it is imperative and beneficial to think from another person’s pov. The example serves as a metaphor for the broader message about the importance of conscious decision-making in interpreting and responding to life's routine difficulties, urging readers to consider alternative perspectives and avoid default-settings that contribute to a narrow and self-centred worldview. Conscious decision-making is necessary to avoid a self-centered perspective. He presents alternative viewpoints, encouraging the audience to consider the struggles and stories of others in everyday situations. There is no such thing as atheism, and if you worship anything else you will feel weak and afraid, need more power over others to keep the fear at bay, and always on the verge of being found out. The insidious thing about unconscious forms of worship is that they are default-settings, and the world will not discourage you from operating on your default-settings, because the world of men and money and power hums along quite nicely on the fuel of fear and contempt and frustration and craving and the worship of self. Precis Contemporary culture results in wealth, comfort, and personal freedom but also contributes to a sense of being alone in one's self-centered kingdom. The author urges embracing true freedom, rooted in attention, awareness, discipline, and caring for others. The author advises avoiding default-settings and staying conscious to understand life's essential truths. Margaret Davies Asking the law question (what is it?) Nothing philosophical should be taken at face value; if it only has face value, then philosophically, it may not be of much value. Jurisprudence spans literature, science, and everyday experience, structuring the entire world with various laws. The law, as a form, is unavoidable, regardless of its substance. An individual thinks and acts in relation to laws governing different aspects of human existence, such as social behavior, language, and knowledge. The law of exclusion in jurisprudence creates a dilemma, supposedly safeguarding legal philosophy from external influences. Even critical legal theorists who challenge the positivist idea of a separate law often take it as a starting point to subvert the conventional understanding of law. However, law cannot be conceptually separated from its context; it cannot be separated from the human lives that have created, applied, and criticized it. Laws being contingent does not imply that they can be safely discarded or ignored; rather, the reasons for their existence must be examined to understand why we perceive things as we do. Some believe that if our worldview is socially determined, we must reject truth, reality, and knowledge. However, viewing knowledge as coming from an external source presents challenges. The idea of something "out there" creates a dilemma for our thinking. Social determinations suggest fitting into predefined patterns or laws, indicating they precede individuals. The legal system sees laws as transcendent, fitting cases into predetermined rules, implying a hierarchy. This framework lets us avoid questioning why we think, act, and decide in certain ways by attributing patterns to an external source. Challenging this, as Oliver Wendell Holmes does, sees rules as products of everyday reality, shaped by life and culture. Rules are dynamic, lacking a fixed place, existing within everyday reality. Dismissing this oversimplifies our existence. The definition of law is that it is something devised by humans to create order within society. Law regulates human behavior and the relationships between members of a society. Law may attempt to enshrine certain ideals, such as equality, freedom, and justice. Hans Kelsen argued that the "norm functions as a scheme of interpretation." A norm refers to a rule, standard law, or principle, related to the word "normal." A critical issue for Kelsen's argument is that an event or a fact, such as the killing of a human being, does not carry legal significance in itself. The legal meaning of an event is not inherent but a result of viewing the act through a legal system. For example, driving fast is not illegal until seen through the filter of traffic regulations. Legal significance is derived from the law, acting as a scheme of interpretation that categorizes acts as legal or illegal, tortious or criminal, breach
of contract, etc. The law orders acts, experiences, and our relation to the world through concepts such as property, reasonableness, and consent. Kelsen's perspective on law emphasizes its role as a medium of interpretation. Laws not only prescribe actions but also have a cognitive function, structuring how we perceive the world. Law imposes order on acts, experiences, and relationships that would otherwise lack legal meaning. While those familiar with legal studies acknowledge that the legal definition of an act may differ from popular or common-sense definitions, this awareness often requires a nuanced and dual-faced approach to interpretations. Kelsen believes that law not only prescribes actions but also shapes how we see the world. However, his view that a legal person is just a combination of legal obligations and rights, separate from the actual human being, overlooks the human aspect and the role of social and cultural norms in creating legal identities. In stating that norms function as a scheme of interpretation, Kelsen was extrapolating the philosophy of Immanuel Kant. Kant argued that the perception of objects conforms to certain conditions of knowledge existing in the mind. There are certain laws of understanding that order our experience. Knowledge of the world is filtered by the laws of understanding. Kant saw the basic concepts of the mind as laws that order experience, similar to how social order is traditionally seen as a product of the laws of our legal system. Kelsen, too, viewed the laws of a legal system as cognitive, providing a framework for interpreting certain acts. The subject matter of jurisprudence extends beyond the laws of a legal system that prescribes behavior and orders society. It includes the structure of truth and the interpretations we have of the world. Limiting jurisprudence to the idea of law in a legal system reinforces the artificial distinction between law and non-law. Kant saw the basic structure of the mind as universal, making the laws of understanding natural. The distinction between natural law and posited laws is important. Natural law theory attempts to elucidate a system of laws, such as laws of morality or religion, which exists regardless of whether any human agency has laid them down. Positivists assert that the validity of a law has nothing to do with its morality or existence in a higher place; law is simply what has been authoritatively laid down or posited. A contrasting idea could be Foucault’s view that challenges the notion that the conditions of understanding are structured in the same way for everyone. He asserts that our cognitive conditions are not universally natural or eternal but are instead historically and linguistically contingent. Foucault contends that language, culture, gender, race, and class significantly shape our perception, undermining the idea of universal laws governing understanding. HLA Hart's "The Concept of Law" introduces several key concepts and distinctions that form the foundation of his legal philosophy. Here are some key points:
- Primary and Secondary Rules:
- Hart distinguishes between primary rules that guide conduct and secondary rules that establish the framework for the creation and modification of primary rules.
- Primary rules govern behavior in society (e.g., rules against theft or murder), while secondary rules include rules of recognition, rules of change, and rules of adjudication.
- The Rule of Recognition:
- The rule of recognition is fundamental, serving as the social standard by which individuals recognize and identify valid legal rules.
- It determines the validity of a norm within a legal system.
- Legal Positivism:
- Hart aligns with legal positivism, separating law from morality.
- According to legal positivism, a law's validity depends on adherence to the rule of recognition, regardless of its moral content.
- External and Internal Aspects of Rules:
- Hart introduces the idea that rules have external and internal aspects.
- The external aspect describes behavior from an observer's perspective, while the internal aspect involves an individual's attitude toward the rule.
- Legal Obligation and Internal Point of View:
- Hart distinguishes between the internal and external points of view regarding legal obligation.
- The internal point of view reflects an individual's recognition and acceptance of legal rules as binding, creating a sense of obligation.
- Critique of Natural Law:
- Hart critiques natural law theories that posit an inherent connection between law and morality.
- He argues that legal systems can operate independently of moral considerations, with validity determined by social facts and the rule of recognition.
- Discretion of Officials:
- Hart acknowledges the discretion exercised by legal officials, emphasizing the interpretive nature of applying legal rules.
- Officials must exercise judgment in marginal cases, allowing for a range of reasonable interpretations. These key points provide an overview of HLA Hart's conceptual framework in "The Concept of Law" and his significant contributions to legal philosophy.
Key points:
- Universal and Unchanging: Natural law is based on right reason and is universally applicable, remaining constant and eternal. It doesn't change across different societies or over time.
- Source of Authority: The source of this law is considered to be God. It is not subject to alteration or repeal by any human authority, such as the senate or people.
- Moral Commands: Natural law commands individuals to do what is right and prohibits them from wrongdoing. It serves as a guide to duty through its commands and dissuades from wrongdoing through its prohibitions.
- Individual Access: Every person has access to the standards of natural law through reason. It is inherent in human nature, and individuals don't need external authorities for its interpretation.
- Eternal and Unchangeable : Cicero asserts that there is one eternal and unchangeable law valid for all nations and times.
- Consequences of Disobedience : Disobeying natural law is seen as fleeing from oneself and denying one's human nature. Such disobedience brings severe penalties, even if conventional punishments are avoided.
- Inherent Connection with Justice: Cicero highlights that only just laws truly deserve the name "law," emphasizing the intrinsic connection between natural law and the principles of justice and truth. In summary, Cicero's conception of natural law is grounded in the idea of an unchanging, universal moral order accessible to individuals through reason, with God as its ultimate source and just principles as its foundation. Thomist version of natural law by Aquinas: ● Aquinas believed that a law was just if it aligned with natural law, which was a moral order derived from reason and governed by principles of the common good. For a law to be just, it had to meet certain criteria: it should have contributed to the common good, not have exceeded the authority of the lawgiver, and have imposed burdens fairly on citizens. ● If a law failed in any of these aspects and became unjust, Aquinas argued that citizens were not morally obligated to obey it. The commonly attributed phrase "an unjust law is not law" captured this idea, even though Aquinas didn't use these exact words. Essentially, he suggested that a law contrary to the principles of natural law was more like an act of violence than a true law. ● according to Aquinas, citizens were not morally bound to follow laws that went against basic principles of fairness, the common good, or the limits of authority. If a law deviated from these principles, it lost its moral legitimacy. ● The phrase “lex iniusta non est lex” "an unjust law is no law at all" can be understood in two ways. One view suggests that an immoral law is not valid law, but this idea is criticized because a corrupt legal system might still enforce it. A more reasonable interpretation is that unjust laws lack the moral force of laws consistent with a "higher law. For example: “this law is unjust; it is not law in the fullest sense, and therefore citizens can in good conscience act as if it were never enacted; that is, they should feel free to disobey it.” ● There are often moral reasons for obeying even an unjust law: for example, if the law is part of a generally just legal system, and public disobedience of the law might undermine the system, there is a moral reason for at least minimal public compliance with the unjust law. However, this conclusion is controversial, as there are moral reasons for obeying such laws, especially if disobedience might harm an overall just legal system. Aquinas hinted at this perspective, and some theorists, like John Finnis, developed it further. ● Others argue for a moral test for legal validity, a view associated with Aquinas. Aquinas's natural law theory provides a framework for an ethical system but lacks specific guidance on moral issues, assuming that Church teachings and wise reflections would fill in those details. ● Aquinas distinguishes four kinds of law:
- eternal law: comprised of those laws that govern the nature of an eternal universe. 'laws' by which the universe is ordered.
- natural law: Natural law consists of principles from the eternal law that guide the actions of beings with reason and free will, like humans. According to Aquinas, the most basic rule of natural law is a somewhat obvious one: do good things and stay away from bad things. It's important to understand that Aquinas believes in a natural law theory of morality, meaning that what is considered good or bad comes from the rational nature of human beings. So, according to him, good and bad are not just personal opinions—they are objective and apply universally to everyone.
- human law: In simple terms, Aquinas suggests that a law made by humans is only valid if it aligns with natural law—the set of principles derived from the rational nature of humans. Aquinas emphasizes that if a human law deviates from natural law, it's not a real law but a distortion of the law. To put it differently, a law that is unfair or unjust doesn't deserve to be called a law at all.
- divine law: Divine law is concerned with those standards that must be satisfied by a human being to achieve eternal salvation. One cannot discover divine law by natural reason alone; the precepts of divine law are disclosed only through divine revelation. Conceptual naturalism is the idea that a rule or law is only valid if it aligns with natural law—a set of principles believed to be inherent in human nature and dictated by God. According to this idea, no human-made laws are valid if they go against these natural laws, and any valid laws get their authority from this fundamental set of principles.
William Blackstone, a legal scholar, articulates the two claims that constitute the theoretical core of conceptual naturalism:
- there can be no legally valid standards that conflict with the natural law; and 2) all valid laws derive what force and authority they have from the natural law. classical naturalists believe that human-made laws should align with moral principles. While they acknowledge that people have some freedom in creating laws, they argue that this freedom is limited by moral norms. Critics of this view argue that, contrary to the idea that unjust laws are not binding, many unjust laws are enforced, and individuals can face severe consequences for going against them. This criticism emphasizes the practical challenges of relying solely on the alignment of laws with moral principles. Substantive Neonaturalism of John Finnis: ● John Finnis builds on the ideas of Aquinas and Blackstone, suggesting that their naturalism is not about defining the conditions for law's existence but explaining its moral force. ● According to Finnis, natural law principles clarify why we should follow positive laws, even if those laws don't directly come from these principles. In his view, the main purpose of law is to justify the use of state power. ● So, even though an unjust law may be legally valid, it lacks a proper justification for the state's coercive power and falls short of fulfilling the moral ideals embedded in the concept of law. In other words, an unjust law might be legally binding but doesn't fully qualify as law. ● John Finnis's naturalism is both an ethical and legal theory. He identifies several fundamental goods like life, health, knowledge, play, friendship, religion, and aesthetic experience, each having intrinsic value for humans. These goods are universal, applicable to all cultures and times. According to Finnis, moral principles help guide our pursuit of these basic goods, allowing us to choose between them and set boundaries on what actions are acceptable in the pursuit of these goods. ● On Finnis's view, the conceptual point of law is to facilitate the common good by providing authoritative rules that solve coordination problems that arise in connection with the common pursuit of these basic goods. ● In simple terms, John Finnis argues that while there's no necessary moral test for legal validity, laws that deviate from certain moral principles may lack full authority. Unjust laws may technically be legally valid, but they might fail to provide moral reasons for action, which is the essential purpose of legal authority. ● According to Finnis, a ruler's moral authority is grounded in the opportunity to promote the common good by addressing a community's coordination issues. ● Finnis's theory is more plausible than traditional classical naturalism, but it somewhat aligns with legal positivism, suggesting that technically valid laws, even if unjust, don't fully bind citizens. Procedural Naturalism of Lon Fuller: ● Lon Fuller disagrees with the idea that there are strict moral rules dictating the content of the law. ● But Fuller, unlike Finnis, believes that law is necessarily subject to a procedural morality. On Fuller's view, human activity is necessarily goal oriented or purposive in the sense that people engage in a particular activity because it helps them to achieve some end. ● Applying this idea to lawmaking, he asserts that understanding laws requires recognizing and acknowledging their fundamental values and purposes. ● 8 principles that a system of rules must follow to effectively perform this function: (1) laws should be general; (2) they should be promulgated, that citizens might know the standards to which they are being held; (3) retroactive rule-making and application should be minimised; (4) laws should be understandable; (5) laws should not be contradictory; (6) laws should not require conduct beyond the abilities of those affected; (7) they should remain relatively constant through time; and (8) there should be a congruence between the laws as announced and as applied. ● EIGHT DISTINCT ROUTES TO DISASTER : 1. Failure to achieve rules at all so that every issue must be decided on an ad hoc basis, generalisations aspect; 2. Failure to publicise, or atleast to make available to the affected party the rules he is expected to observe; 3. The abuse of retrospective change; 4. Failure to make rules understandable; 5. The enactment of contradictory rules; 6. Rules that require conduct beyond the powers of the affected party; 7. Introducing such frequent changes in the rules that the subject cannot orient his action by them; 8. A failure of congruence between the rules as announced and their actual administration. ● Fuller sees these principles as a form of morality inherent in law. This morality stems from the positive moral value of law contributing to social order while respecting human autonomy through rule-guided behavior. ● Because these principles are necessary for law to achieve its morally valuable objectives, Fuller considers them a form of morality built into the very existence of law. This, in turn, aligns with the strong Overlap Thesis, making Fuller a conceptual naturalist. ● However, Fuller's conceptual naturalism differs from classical naturalism. Unlike classical naturalists who argue for necessary moral constraints on the content of law, Fuller emphasizes necessary moral constraints on the procedural aspects of lawmaking and administration. In essence, he focuses on how the system of rules must be constructed and administered to be effective and maintain its legitimacy.
standard that fits with legal practices. He sees judicial decision-making as a form of moral philosophy, where judges must consider political and moral ideals to provide the soundest justification for the law. In this approach, even a judge's opinion is considered a piece of legal philosophy, delving into political and moral theory. ● He introduces the Rights Thesis, stating that even in cases without clear rules, one party may have a right to win, and it's the judge's duty to determine these rights. Dworkin distinguishes between two types of legal arguments: policy arguments, justifying decisions based on community goals, and principle arguments, justifying decisions by respecting individual or group rights. ● Dworkin's ideas challenge legal positivism , particularly its core beliefs: Conventionality Thesis, Social Fact Thesis, and Separability Thesis. He opposes the idea that judges should interpret laws solely based on formal rules, arguing that moral principles play a crucial role, and he denies that legal validity is entirely separate from moral content, aligning him with a naturalist perspective. NATURAL LAW THEORY VERSUS LEGAL POSITIVISM- Finnis’s account is prescriptive in nature, with certain descriptive elements. Like Hart, Finnis emphasises on the need to use an internal POV in analysing a legal system, believes that our understanding of legal systems should centre on the fact that law affects our research for action. Finnis makes an important amendment to Hart’s approach. He argues that in doing legal theory, one should not take the perspective of those who merely accept the law as valid (Hart appears to include even those who accept the law for prudential reasons). Rather, the theory should assume the perspective of those who accept the law because they (in a just legal system) believe that valid legal rules create prima facie) moral obligations. Finnis’s approach to descriptive theory, unlike Hart’s, requires that the theorist evaluate the moral merits of the legal system(s) being described, and it is the issue of whether such moral evaluations in the process of theory-construction are proper or necessary that has been one boundary line in recent times between legal positivism and natural law theory. THREE DIFFERNECES - Natural law theory asserts that a morally neutral theory of law is not viable. It emphasizes how positive law contributes to moral obligations when rules align with moral principles and are enacted by a legitimate authority. This contrasts with legal positivism, which avoids or clumsily addresses this question, often conflicting with its foundational claims or attempting to navigate the "is/ought" distinction. Natural law theory sees law as a reason for action, intertwining with moral considerations, making a morally neutral approach untenable. In contrast, legal positivism focuses on law as a social institution, where a morally neutral theory is seen as both possible and valuable. The challenge lies in finding a theory that convincingly incorporates both the practical reasoning and social practice/institution aspects of law. Natural law theory, particularly in Finnis's version, prioritizes "why is law?"—the moral reasons for having law—over defining the boundaries of the concept of law. ( what is law?) MODULE 3 - COMMAND THEORIES —------------------------------------—--------------------------------------------—-------- BRIAN BIX— Excerpts from William Sweet, ‘Bentham’, and Suri Ratnapala, ‘Jurisprudence’— ● Bentham’s moral philosophy reflects what he calls at different times “the greatest happiness principle” or “the principle of utility”—a term which he borrows from Hume. he was not referring to just the usefulness of things or actions, but to the extent to which these things or actions promote the general happiness. ● What is morally obligatory is that which produces the greatest amount of happiness for the greatest number of people, happiness being determined by reference to the presence of pleasure and the absence of pain. ● For Bentham, the principles that govern morals also govern politics and law, and political reform requires a clear understanding of human nature. ● Bentham advocated the rational revision of the legal system, a restructuring of the process of determining responsibility and of punishment, and a more extensive freedom of contract. This, he believed, would favour not only the development of the community, but the personal development of the individual.—Bentham’s attack on Blackstone. ● Bentham repudiated many of the concepts underlying their political philosophies, such as natural right, state of nature, and social contract. Bentham then attempted to outline positive alternatives to the preceding “traditionalisms.” ● Bentham’s notion of pleasure included not only carnal pleasures but also the more sublime forms of satisfaction gained from intellectual and spiritual pursuits, noble deeds and self-sacrifice. ● drew from this his famous principle of utility, which states that an action ought to be approved or disapproved according to its tendency to increase or diminish the happiness of the party whose interest is in question. ● a system of law that derives its rules exclusively from the commands of a sovereign authority, when measured by the yardstick of public utility, is superior to the common law system. Bentham proposed the codification of all laws. Law, Liberty and Government—
● The notion of liberty in Bentham’s account is “negative” liberty—freedom from external restraint or compulsion, absence of restraint. Denies that liberty is “natural”, people have always lived in society, there can be no state of natural and no “social contract”. ● Viewed law as “negative”, correlative with liberty. Given that pleasure and pain are fundamental, liberty is a good and its restriction is evil. Law is a restriction of liberty and thus is prima facie evil, necessary to social order and good government, community well-being. To the extent that it advances and protects one’s economic and personal goods and that what government exists is self-government, law reflects the interests of individuals. ● Law is not rooted in “natural law” but is simply a command expressing the will of the sovereign. Rights— ● Attack on “natural rights”. Rights are created by the law, and law is simply a command of the sovereign. The existence of law and rights, therefore, requires government. Rights are also usually (though not necessarily) correlative with duties determined by the law and, as in Hobbes, are either those which the law explicitly gives us or those within a legal system where the law is silent. The view that there could be rights not based on sovereign command and which pre-exist the establishment of government is rejected. ● According to Bentham, then, the term “natural right” is a “perversion of language.” It is “ambiguous,” “sentimental” and “figurative” and it has anarchical consequences. At best, such a “right” may tell us what we ought to do; it cannot serve as a legal restriction on what we can or cannot do. The term “natural right” is ambiguous, Bentham says, because it suggests that there are general rights—that is, rights over no specific object—so that one would have a claim on whatever one chooses. The effect of exercising such a universal, natural “right” would be to extinguish the right altogether, since “what is every man’s right is no man’s right.” No legal system could function with such a broad conception of rights. Thus, there cannot be any general rights in the sense suggested by the French declarations. · Such a right, Bentham claims, entails a freedom from all restraint and, in particular, from all legal restraint. Since a natural right would be anterior to law, it could not be limited by law, and (since human beings are motivated by self-interest) if everyone had such freedom, the result would be pure anarchy · Rights—“real” rights—fundamentally legal rights. All rights must be legal and specific. They ought to be made because of their conduciveness to “the general mass of felicity,” and correlatively, when their abolition would be to the advantage of society, rights ought to be abolished. · There has been some debate over the extent to which the rights that Bentham defends are based on or reducible to duties or obligations, whether he can consistently maintain that such duties or obligations are based on the principle of utility, and whether the existence of what Bentham calls “permissive rights”—rights one has where the law is silent—is consistent with his general utilitarian view. · A law, in Bentham’s view, is known beforehand. It must set a standard by which conduct of people can be judged by courts to be legal or illegal. Adjudication is primarily a process of deduction from established law and found facts. Bentham saw in customary and common law the opposite process. The court determines whether an act is legal or illegal and people infer a rule of conduct from the court’s decision. ‘Written law is the law for civilised nations; traditionary law, for barbarians; customary law, for brutes’ · History shows that Bentham failed in his mission, within his own country and in other parts of the English-speaking world. Bentham did not inspire the codes of civil law countries, as they pre-dated his writings. Common law, contrary to Bentham’s hyperbole, provided guidance for conduct for both the people and the courts. The common law courts did not create the common law willy-nilly. In the large majority of cases, the courts enforced a known rule, articulated in precedents and followed in practice by most people. The common law possessed a virtue that Bentham simply failed to notice. It was the capacity for incremental legal change to reflect social evolution – something that a legislative process riddled with factional conflict lacks. In England, the common law was regarded not just as law but as a system of law that was the product of English genius. Excerpts on “Austin’s Theory” by Bix— · On Austin’s reading of utilitarianism, Divine will is equated with Utilitarian principles: “The commands which God has revealed we must gather from the terms wherein they are promulgated. The command which he has not revealed, we must construe by the principle of utility” · In general, one might look at many of the theorists prior to Austin as exemplifying an approach that was more “community-oriented”—law as arising from societal values or needs, or expressive of societal customs or morality. By contrast, Austin’s is one of the first, and one of the most distinctive, theories that views law as being “imperium oriented”—viewing law as mostly the rules imposed from above from certain authorized (pedigreed) sources ·. More “top-down” theories of law, like that of Austin, better fit the more centralized governments (and the modern political theories about government) of modern times · Secondly, within analytical jurisprudence, Austin was the first systematic exponent of a view of law known as “legal positivism.” legal positivism asserts (or assumes) that it is both possible and valuable to have a morally neutral descriptive (or “conceptual”—though this is not a term Austin used) theory of law. (The main competitor to legal positivism, in Austin’s day as in our own, has been natural law theory.) Legal positivism does not deny that moral and political criticism of legal systems is important, but insists that a descriptive or conceptual approach to law is valuable, both on its own terms and as a necessary prelude to criticism.
question—limit of judicial discretion. Judges cannot legislate at will without destroying public condifence in courts, and thereby their political and moral authority. Austin’s taxonomy— ‘Law’ in addition to laws of political sovereign, include divine, moral, customary laws and laws of private associations, households and international law. Criterion for a law to be ‘properly so called’—it derives from authority. Others are laws by analogy—laws only in the figurative sense. They resemble proper laws to varying degrees but are merely opinions. Laws properly so called and positive law— · Two kinds of authority—of Christian scriptures (source of divine law, set by God for his creatures) and of the politically superior (direct and circuitous source of human law, ‘positive law’). · Common law is made by sovereigns through their delegates, the judges. Sovereign commands may be express or tacit. Sovereigns can change common law at will but often allow it to stand during their pleasure and is the author of measureless system of judge-made rules of law. · Introduced a further subdivision of positive law—distinguished laws set directly by the political superior or sovereign from laws set by private citizens in pursuance of their legal rights. Laws improperly so called— · Not all norms are proper laws, but only those that have been authoritatively established by God or by the sovereign. There are many kinds of law improperly so called, they are based on opinion and not authority. Some resemble proper laws to varying degrees and are called laws with reasons, others are only remotely analogous and are called law by ‘caprice of the fancy’, laws only in figurative sense. Former—laws by analogy, latter—laws by metaphor. · The kind most remote from proper law—laws of science—they don’t command anything to be done, but predict effects of physical causes. They are called laws because they resemble proper laws whose commands usually are obeyed. Laws by analogy—not law but positive morality, includes non-obligatory rules of social etiquette, also encompasses customary, international and constitutional law which are considered as binding in general opinion. · Customary law—rules that are spontaneously adopted by a community, yet don’t fit in laws properly so called because do not derive their force from sovereign or divine command, remain positive until transformed into legal rules. · International law—does not flow from the will of a sovereign but consists of opinions and sentiments current among nations. No political sovereign, no law. Hence, it can only become positive law under a global empire. Austin’s positive law— · Comprises of commands of a political sovereign supported by sanctions on those who disobey. Three key elements: political sovereign, command and sanction. Any society that does not have these will have ‘laws improperly so called’ or positive morality. Political sovereign—necessary feature of independent political society. · Sovereign— is a determinate human superior (single person as an absolute monarchy, or group, identifiable); the bulk of people habitually obey the sovereign (rules are observed by most of members most of time, widespread disobedience means political authority and legal system have become ineffective and such a state is a state of nature, in civil was the society is two independent societies, supremacy of one faction over the other needs to be established for positive law); the sovereign is not in the habit of obedience to any other human superior ; sovereign’s power cannot be legally limited (where the superior power can impose limits, the superior power is the real sovereign, Hart pointed out that a legally unlimited sovereign is doomed, example, British Crown reconstituted by an Act of Parliament); Sovereignty is indivisible (notion of a divided sovereign is absurd, but in many modern states it is divided among legislative, executive and judiciary, and also territorially federations, organs are simply different ways of executing sovereign commands, officials and judges are mere delegates; where power is divided in a symmetric federation, Austin suggests they are lawless, regional units and federal government are jointly sovereign in each and every unit and in the federation) · The problem of sovereign in representative democracy— complicates identification of the sovereign. Sovereign cannot be both commander and the commanded, obedience to electorate does not make it the sovereign. Electorate is the master. Command, duty, sanction— · A command is not a request but an imperative that creates a duty by the presence of a sanction. A command involves: (1) a wish or desire conceived by a rational being that another rational being shall do or forbear; (2) and evil in case of non-compliance; (3) intimation of the wish by words or other signs. Cannot be separated from duty and sanction, they are aspects of a single event. The rules of criminal law are general commands, impersonal and not directed to particular individuals. A command by which an individual’s property is appropriated to the state is a particular command. Both create positive law. · These are not laws properly so called, but may be justifiably included in jurisprudence: (1) declaratory laws clarifying existing legal relations; (2) laws to repeal law are not imperative command; (2) laws of imperfect obligation law down rules without attaching a sanction for their breach. · Laws that create rights and liberties in individuals are imperative and hence, by Austin’s definition, are laws properly so called, because they create correlative duties on the part of another. JOHN D. FINCH—INTRODUCTION TO LEGAL THEORY—BENTHAM AND AUSTIN—
· Bentham had such a low opinion of natural law doctrine that he condemned it as “this formidable non-entity the law of nature” · The particular advantage which positivism may claim is in the very posing of questions concerning legal reform and evaluation, the scope and the subject matter of such questions can be positively delineated. Bentham insisted on the separation of matters analytical and matters evaluative—on the distinction between “exposition” and “censure” in jurisprudence. Bentham’s work shows clearly that a positivist definition of law goes together with the most emphatic awareness of the difference between good and bad, and with a strong legal philosophy. · Bentham and Austin, jointly responsible for formulating an analysis of law now commonly known as the Imperative Theory (attracted its name on account of “commands” issued by a “sovereign”). In comparison with some of the recent products of a positivist approach to legal analysis, the expositions of law given by Bentham and Austin contain many inadequacies in respect of both theory and practical administration of law. Merit and Demerit— General proposition of positivism is that the nature of law is to be examined in relation to what is found to exist as a product of human action—emphasis on creation rather than upon emulation of a superior or higher law. The Imperative Theory, as one of the earliest forms of positivism, gives particular emphasis to the human creative element in law. This emphasis represents both merit and demerit of positivism’s earliest expressions. The making or laying down of legal rules is given particular attention by both Austin and Bentham, the very name positivism relates to “law as it is laid down”. A concentration on the circumstances which surround the laying down of such rules is readily understandable. Law and Sovereignty— · The elements of certainty in description of sovereign body and of sovereign’s superior position are even further emphasized by Austin. A feature reminiscent of Bentham’s initial definitions of law and sovereignty is found in Austin’s composite definition of both the notion of sovereignty and what he calls an “independent political society”. This relationship—further described as one of sovereignty and subjection. · Austin insisted that a true sovereign should attract the obedience of political inferiors and should not render obedience to any superior. Sovereign should be determinate, habitual obedience should be rendered to one and the same determinate person or body of persons. Also insists on both indivisibility and illimitability as necessary characteristics of sovereign power. · Bentham insisted on neither. Bentham shows an awareness of the necessity to adapt legal concepts to the theoretical and practical end. Such, however is the inflexible nature of Austin’s definition, which depends on both legal and political, as well as sociological, considerations that a false dilemma is presented. Raz writes: Bentham did not have an explanation of divided sovereignty and suggested no way of deciding whether a certain legal power is a part of a sovereign power. Nor did he explain what the relations between various powers are constituting one sovereign power in a federation. He did not explain satisfactorily how sovereignty can be legally limited. · Shortcomings of Austin—stem from a confusion of legal superiority and political superiority—in a democracy the electorate constitutes a part of the sovereign body. His tendency to make propositions about law and politics in the same breath might be interpreted as a sign of realism in his approach. This induces a description of Austin’s approach as observation, not explanation. Law and Sanctions— · There are large and important areas of law in which definition in terms of sanctioned commands breaks down entirely, since many legal rules are designed to perform an altogether different social function. The rules which provide facilities to act in certain ways in order that a certain action can produce legal consequences cannot find a proper place in Austin’s account. The name given by Hart to such rules is “power-conferring” rules, these may confer either public or private powers. It does not really matter whether the word sanction is extended to cover legal invalidity, nullity or inconvenience. · Bentham’s account admits both punishments and reward, which he calls respectively “coercive motives” and “alluring motives”. Austin refuses to allow “sanction: to be extended to cover rewards. This difference can be attributed to the relative lack of concern shown by Bentham with the element of sanction in his concept of law. Bentham pays more attention to sanctions when discussing methods of enforcement of laws at a later stage in his work. · Questions as to identificatory marks of law and motives for which people obey law—whenever motives and causal relationships are introduced into legal analysis the danger arises of obscuring the essentially prescriptive character of law. Both invite such a confusion. Sovereignty in action— · Bentham was clearly aware of the artificial and unrealistic results which would ensue if the sovereign or sovereign body were said specifically to produce and promulgate all the “commands” or “orders” out of which the content of the positive law of a state is made up. His exposition therefore includes the idea that the sovereign, though directly responsible for originating some of the positive law, also takes over or adopts orders given by others. (adoption of orders issued by political subordinates). · His account is thus regarded as being of an “atomic” nature. His definition also includes a judicial order, military or any other kind of executive order, etc—the notion of adoption of orders of others is neither more nor less realistic than the notions of susception and pre-adoption. They all represent an attempt to account for the way in which valid legal acts acquire their authoritative character.
e.g. Hobbes). Due to a historical accident, it is Austin’s writings that became more prevalent that Bentham’s though the former was the latter’s disciple and a far more sophisticated legal philosopher. It is very important to understand the command theorists because they were enormously influential and a lot of 20th century legal philosophy including Kelsen and Hart evolved in response to these command theories. According to these theories, something is law if it has been commanded by a Sovereign, and is backed up by the threat of a sanction in case of non-compliance. Command theories have some things going for them which explained their sway over us for so long: They urge us to identify and understand what law is before considering whether it is morally good or bad; they give a central role to sanctions which are ubiquitous in the law. Criticisms to Positivism- Positivism fails to explain how the sovereign decides which law to pass. If morality is not the deciding factor then what is. How does a sovereign decide? Positivism does not help us distinguish between a right law and a wrong law or a good law and a bad law. All that positivism helps us do is distinguish between a valid law and an invalid law. The second criticism, positivism fails to justify the process by which a law is enacted. How can we determine that the rule, which allows the parliament to make laws, in the first place is valid? We cannot logically determine this. Hart for instance says that the rule, which governs law making, is socially accepted. What happens if the rule is rejected- protests, revolutions, and civil disobedience? People are rejecting the law does the law remain valid? According to positivists it invalidated the laws and law making procedures. According to Kelsen the rules that authorize the sovereign to make law exist in the “Grund Norm”. This is a fundamental norm upon which all other norms/ laws are based. The “Grund Norm” is something you either accept or you do not. If you accept it then laws are valid and if you don’t then laws are invalid. An important parallel between positivism and natural law is that both theories are based on social acceptance. Hart-What matters is whether or not the law was validly enacted by the sovereign not whether it is immoral or moral. Fuller- The law is not valid because it is immoral. (Example- Nazi Germany). MODULE 4 - MODERN LEGAL POSITIVISM 1: PURE THEORY OF LAW —--------------------------------------------- GENERAL THEORY OF LAW AND STATE Kelsen proposed a theory that aimed to separate law from other social, political, or moral considerations, focusing solely on its structure and validity.At its core, Kelsen's theory centers on the concept of a "basic norm," which serves as the foundation for the entire legal system. This basic norm is not a positive law but a presupposed norm necessary for interpreting the legal system. It's like a meta-legal construct that validates the legitimacy of the legal order. His Pure Theory of Law aimed to establish a systematic and hierarchical structure within legal systems, focusing on the basic norm as the foundational element. Differentiation between Judiciary and Administration: Kelsen argues for a distinction between the judiciary and administration based on the direct and indirect nature of their functions. He suggests that administration operates more directly towards state ends compared to the judiciary. ● Law as Coercive Order: Kelsen defines law as a coercive order, stating that it entails imposing sanctions or measures of coercion against individuals who violate the established norms. ● Legal Norm and Rule of Law: He discusses the distinction between legal norms (prescriptive) and rules of law (descriptive), emphasizing that legal norms stipulate sanctions based on certain conditions, often expressed as 'ought' statements. ● The Basic Norm of a Legal Order: Kelsen introduces the concept of the "Basic Norm," which is a presupposed norm necessary for the validity of all norms within a legal system. This Basic Norm acts as a foundation for the entire legal order, derived from a historical or constitutional standpoint. ● Changes in the Basic Norm and Effectiveness: The text discusses scenarios where changes in governance or revolutions can lead to shifts in the Basic Norm, altering the legal order's efficacy and, consequently, the validity of established norms. ● Relationship between National and International Law: Kelsen delves into the relationship between national and international law, suggesting that the Basic Norm of national law is relative and interconnected with international law, particularly through the principle of effectiveness. ● Clarification on the Basic Norm: Kelsen differentiates his concept of the Basic Norm as a presupposed norm in juristic thinking from the positive legal constitution, emphasizing that it validates the norms rather than dictating their content. ● Analysis Kelsen's Pure Theory of Law revolves around the concept of the Basic Norm as the linchpin of legal systems. This foundational idea essentially postulates that the validity of all legal norms within a system relies on this presupposed norm, which isn't a norm of positive law but rather a construct necessary for perceiving a legal system as generating valid norms. He emphasizes the distinction between descriptive legal rules and prescriptive legal norms, underlining that legal norms are inherently coercive and tied to sanctions, often expressed as 'ought' statements. Moreover, he explores the dynamic nature of
legal orders, especially in situations of revolution or governance changes, where shifts in the Basic Norm can lead to changes in the efficacy and validity of legal systems. Kelsen's differentiation between national and international law highlights their interdependence, with the Basic Norm of national law being ultimately derived from international law, particularly through the principle of effectiv eness. The text reflects Kelsen's aim to establish a logical and hierarchical structure within legal systems, offering insights into the foundational elements and interconnections between national and international legal orders. Hans Kelsen’s Pure Theory of Law Main points of the reading:- Hans Kelsen, a prominent legal theorist, is known for his Pure Theory of Law, which aimed to develop a comprehensive understanding of law while stripping away non-legal elements such as morality and sociology.
- Pure Theory of Law: Kelsen advocated for a purely descriptive analysis of law, devoid of subjective elements like morality or politics. His theory aimed to provide a scientific and value-neutral description of law as a social institution. Kelsen argued that legal norms are based on authoritative rules and that law should be understood independently of societal or moral considerations.
- Normativity in Law: Central to Kelsen's theory was the concept of normativity in law. He posited that legal systems are fundamentally based on normative claims, meaning they involve arguments about what one ought to do. Kelsen asserted that purely factual premises cannot justify normative conclusions; instead, normative claims require foundational norms accepted without further justification. 3.Basic Norm: Kelsen introduced the idea of the Basic Norm, which serves as the foundational principle upon which a legal system is built. This Basic Norm is the highest norm in the hierarchy and provides validity to all other legal norms within that system. It functions as the starting point from which all legal validity is derived. 4.Reduction in Legal Theory: Kelsen attempted to reduce legal norms to simple authorizations for officials to impose sanctions or create rights. He argued that legal norms ultimately translate into instructions or authorizations for officials to take specific actions based on violations of those norms. This reductionist approach aimed to simplify the understanding of legal norms and their enforcement. 5.Comparison with H.L.A. Hart: Contrasting with H.L.A. Hart's approach, Kelsen's theory, was more abstract and focused on analytical deductions. While both theorists discussed the hierarchical nature of legal systems, Hart's theory emphasised actual social practices and linguistic usage, whereas Kelsen's approach was more theoretical and removed from empirical observations.
- Evolution of Kelsen's Ideas: Towards the end of his career, Kelsen grappled with complex questions regarding the nature of norms within legal theory. This led to changes in his theories and the introduction of intricate ideas concerning the existence, meaning, and logic of norms. These later developments in Kelsen's work presented challenges and complexities that expanded the discourse within legal philosophy. Kelsen's legacy lies in his attempt to provide a systematic and abstract understanding of law, emphasizing normativity and the foundational structure of legal systems. His theories remain influential in legal philosophy, although they evolved and faced challenges over time. Para-by- Para Summary: Kelsen referred to his theory as "reine Rechtslehre", a "pure theory of law", which pushed aside moral judgments, political biases, and sociological conclusions. In H. L. A. In Hart's legal theory, the normative aspect of law is central, and within Kelsen's theory, the normativity of law is an even more central and dominating factor. The two basic starting points for understanding Kelsen's approach to legal theory are that normative claims can be grounded only on other normative claims. Normative claims express judgments about what should or ought to be. They're not just describing what is the case but are making value judgments or prescribing a particular course of action based on a particular set of values or principles. These claims are subjective and are often based on personal beliefs, ethical considerations, or social norms rather than solely on factual observations. For instance, saying
Code of Criminal Procedure), he further classified the secondary rules into three types i.e. the rule of recognition, the rule of adjudication, and the rule of change. The rule of recognition are accepted by the officials of the state as a common standard which also determines their behaviour in the official capacity, and these rule of recognition provide a test for the legal validity of a primary rule. This rule of recognition can be modified either by violent or peaceful means. The rule of change allows and prescribes the procedure for amending or repealing of the primary rules. The rule of adjudication provides for the authority of the officials of the state to decide on the matters where the violation or omission of the primary rules occurs. Now, the most fundamental difference between Hart and Kelsen’s theories are that while Hart incorporates in his theory the sociological aspects like the relationship between the people and the officials, and it bases the rule of recognition on the practice of the officials, while Kelsen does not incorporate any such sociological aspect into his theory. With respect to normativity, Hart explains it from the internal aspect i.e., the attitude of the people that accept the rules, while according to Kelsen it is the Grundnorm that places an obligation on the people to accept it. Hart’s theory is based on the actual fact that exists in the society that can be observed and experienced, while Kelsen according it is the norm that historically first constitution or Grundnorm ought to be obeyed which does not exist in fact, in other words it is a postulate as opposed to a fact. Hart does not give much significance to the written constitution but on the practice of the people who actually implement it i.e., the officials of the state as opposed to Kelsen’s theory whose basis is the historically first constitution from which the chain of legal validity flows. Kelsen essentially embraced what he wanted to oppose that is the perspective of natural law, as his theory does not offer a legal positivistic approach according to which for a law to be valid it has to be posited from a human source, instead the Grundnorm that does not exist in the phenomenal world has to be obeyed by the people, as was the view of the Scandinavian Realists who saw Kelsen’s theory of Grundnorm as essentially a redux of the natural law.5 In essence Hart’s theory is based on fact while Kelsen’s theory is based on fiction and neglects the realpolitik. Therefore, even the assertion made by certain theorists that Hart is simply Kelsen in a sharper stance is untrue based on the above analysis, since these two theories are fundamentally different as one is based on sociological fact and the other is fiction. MODULE 5 - MODERN LEGAL POSITIVISM 2: LAW AS A SYSTEM OF RULES —------------------------------------ Chapter 2:- HLA HART I. Varieties of Imperatives The use of imperative forms in social situations where one person expresses a wish for another person to do or abstain from something. It distinguishes between various situations, such as requests, pleas, warnings, and orders backed by threats. It emphasizes the gunman's scenario, where compliance is sought through a threat, as distinct from typical forms of commands. The excerpt delves into the distinction between commands, coercion, and authority, exploring how these elements relate to the concept of law. It critiques the alignment of commands with law and examines the challenges in defining law through commands, especially in the context of Austin's analysis. ● Commands and Coercion:
- Gunman Scenario: The text highlights the scenario of a gunman coercing a bank clerk into complying with a demand through threats, distinguishing this form of coercion from typical commands. It emphasises the usage of threats to render an action less favorable, resulting in coercion.
- Hierarchy in Commands: It discusses the implication of authority within the term 'command,' noting its strong association with hierarchical structures, such as in military settings. Commands are characterized by an appeal to authority rather than solely relying on the power to inflict harm.
- Authority and Law : While commands hold a closer association with law due to the element of authority, the text argues that authority poses a challenge in defining law. It considers authority as an obstacle in providing an easy explanation of what law truly encompasses. ● Critique of Austin's Analysis:
- Limitation of Commands in Defining Law : The text criticizes Austin's approach of building the idea of law from the scenario of commands, citing the problematic association of authority with commands. It acknowledges Austin's analysis as having clear elements (like coercion) but finds the element of authority to be a hindrance.
- Learning from Failure : Contrary to Austin's aim of establishing law from commands, the text suggests aiming to understand the limitations and complexities inherent in defining law through such means. It proposes learning from the failure to fully encapsulate the essence of law via commands. ● Key Points:
- The excerpt challenges the alignment of commands with law due to the inherent element of authority in commands.
- It critiques Austin's attempt to build the idea of law from commands and emphasizes the need to understand the limitations of such an approach.
- The text aims to navigate beyond the authority-centric view of commands to comprehend the broader essence of law, acknowledging the complexity of this endeavour. II. LAW AND COERCIVE ORDER Overview of Legal Control and Orders The author delves into the transition from direct, individualised commands to the broader, more pervasive nature of legal control within a modern state. They stress that while face-to-face orders between officials and individuals exist, these are exceptions in the broader landscape of legal governance. Generality and Application of Statutes The text underlines the primary generality of criminal statutes, highlighting their resemblance to orders backed by threats. These statutes signify types of conduct applicable to a larger class of individuals without explicitly addressing or naming them, a fundamental characteristic that sets them apart from direct orders. Range and Communication of Laws In a modern state, direct, face-to-face orders between officials and individuals are exceptional. Instead, legal control predominantly operates through general directives applicable to classes of individuals, rather than personalised instructions. Criminal statutes, akin to orders backed by threats, are primarily general in nature. They specify conduct types applicable to a broader class of individuals without explicitly addressing or naming them.The interpretation of laws varies across legal systems. Laws typically apply universally within the territorial boundaries of a state or institution, unless specified otherwise. Within legal systems, laws extend universally within territorial boundaries, applying to all unless otherwise specified. It's emphasised that laws don't need direct 'addressing' akin to face-to-face orders; their implementation doesn't rely on attracting the attention of individuals in the same manner. Persistence and Continuity of Legal Orders The discussion pivots toward the enduring nature of laws, distinct from the temporary coercion seen in face-to-face orders. Laws are expected to persist beyond their initial introduction, with a continuous belief among those affected that disobedience can lead to ongoing repercussions. Notion of General Habitual Obedience The text explores the concept of 'general habitual obedience' to laws, acknowledging its vague nature in defining the extent of compliance within legal systems. This habit distinguishes laws, emphasizing their settled and enduring character in contrast to momentary coercion. Laws are characterized by a vague notion of 'general habitual obedience' to the general orders backed by threats. However, defining the extent of this obedience remains imprecise. General habitual obedience distinguishes laws from simple coercive orders by emphasising the enduring and settled character of laws. Characteristics of Legal Systems The author delineates the supremacy and independence inherent in legal systems within territorial boundaries. They outline the roles of both the supreme legislative body (the sovereign) and subordinate lawmakers, emphasising the latter's adherence to statutory limits set by the sovereign. Independence and Definition of Laws There's an elucidation of the independence of legal systems across countries, contingent upon habitual obedience to their respective supreme legislative bodies. Laws, regardless of origin, are defined as general orders backed by threats, issued either directly by the sovereign or through subordinates under sovereign authority. Author's Perspective
Primary and Secondary Rule of Obligation:- Hart delineates the evolution of societal rules into primary and secondary rules of obligation, marking a shift from primitive social structures to complex modern societies. Primary rules of obligation, inherent in even the most primitive societies, encompass commonly accepted rules of conduct like prohibitions against murder, theft, and the violation of promises. These rules are considered binding and enforced by social sanctions. While they suffice for small groups with shared beliefs, they reveal shortcomings as societies expand and become more complex. Secondary rules of obligation, introduced in more developed societies, address these limitations. They serve three primary functions: firstly, providing authoritative means for interpreting laws; secondly, enabling adaptation of laws to changing conditions; and thirdly, establishing systems for resolving disputes and enforcing judgments. In contrast to the relatively static nature of primary rules, secondary rules allow for the evolution and adaptation of legal systems.Hart argues that developed societies implement secondary rules through institutions such as courts, legislatures, and executive bodies. These rules define the powers and functions of these institutions, establish procedures, and outline criteria for recognizing primary legal rules. The amalgamation of primary and secondary rules leads to the formation of a legal system, differentiating it from a mere set of laws. While Hart's terminology might differ from other theoretical traditions, his distinction clarifies the vital role of secondary rules in shaping legal systems. In many countries, these secondary rules find expression in written constitutions, although in the UK, they are part of the customary constitution. The acceptance of these rules by legislators, courts, and officials is crucial for the functioning of the legal system, especially for those in positions of authority. Hart's perspective offers a clear framework to understand the emergence and functioning of legal systems, illustrating the pivotal role of secondary rules in the evolution of societal laws. The Rule of Recognition Hart introduces the pivotal concept of the "rule of recognition," which acts as the superior rule determining the hierarchy among secondary obligation rules. Typically stated in a country's constitution, the rule of recognition outlines the ultimate criterion for verifying the validity of laws. Contrary to Austin's notion of unlimited sovereignty, Hart refutes the idea that the Queen in Parliament represents an Austinian sovereign. Instead, he suggests that the rule of recognition creates a superior source of law, indicating that common law overrides custom, and laws of Parliament override common law. Hart also challenges Austin's perspective that common law derives from tacit sovereign commands or that legislation serves as the ultimate source of all law. According to Hart, common law exists independently, although legislation may modify it. The rule of recognition plays a crucial role in a modern legal system. It establishes the fundamental criteria for validating laws, ensuring that the laws created by Parliament and acknowledged by judges are not merely obeying commands but are accepted and observed from an internal, obligatory viewpoint. Hart's depiction of a legal system illustrates that its formation relies on two essential conditions: the citizenry generally obeying primary rules acknowledged by the rule of recognition and officials accepting the rule of recognition as the standard for official behavior. Hart notes that the rule of recognition can undergo changes through peaceful transitions, like granting self-government or independence to colonies, or through more disruptive means such as foreign conquest or violent domestic revolution. These changes might not necessarily affect the primary rules of obligation but can significantly impact the struggle over the rule of recognition itself. In instances like the communist revolutions in Russia and China, the overthrow of existing regimes fundamentally altered the country's primary legal rules along with the rule of recognition. International Law The concept of international law poses a challenge to theories like law as sovereign command. According to this theory, international law might not qualify as "proper" law but rather as positive morality, stemming from a lack of a global legislature or court akin to national legal systems. This absence of a fundamental norm that validates all international law rules complicates its classification under legal frameworks like Hans Kelsen's 'pure theory of law.' Despite lacking an authoritative rule of recognition, international law is still acknowledged as law proper according to Hart. It mirrors the primary rules of obligation observed in primitive societies. Sovereign states consider these rules obligatory and use them to assert claims, evaluate the behavior of other states, and criticize actions. Dismissing the argument that international law isn't truly law due to a lack of effective enforcement, Hart recognized that this notion stems from the outdated command theory. However, a practical challenge arises as international law doesn't entirely prevent self-help or war among states. It permits room for such actions, and collective efforts often fail to prevent aggression. Yet, Hart argued that the substantial risks and consequences associated with war serve as a natural deterrent against international anarchy. This inherent risk deters even the most powerful aggressors, thereby sustaining international law to some extent. Law an Morality Hart's perspective on the separation of law and morality is rooted in legal positivism, which denies an intrinsic connection between the two. While acknowledging various connections between law and morality, legal positivists argue that a law's validity doesn't hinge on moral considerations. Hart offered scientific and moral reasons for keeping the realms of legality and morality distinct.
Scientifically, legal positivists assert that not all laws align with moral tests. There exist laws that society might condemn as immoral, yet they are recognized as laws and adhered to. Morally, legal positivists argue that distinguishing morally bad enactments as laws enables corrective action, unlike denying their legal status, which might stall any corrective measures. Hart emphasised a crucial distinction between 'law' and 'legal system.' A legal system relies on the acceptance and observance of primary legal rules by citizens and secondary rules by officials. It requires certain fundamental conditions for individuals' survival, such as securing life, liberty, property, and contractual obligations. Hart acknowledged that even a legal system requires a minimum content of natural law. However, the legality of particular laws offending moral sensibilities within a legal system remains a separate question. Effective legal systems might produce laws perceived as morally repugnant but valid by the criteria set by the rule of recognition. Hart's debate with Lon Fuller regarding the punishment of German 'grudge informers' under the Nazi regime's monstrous laws highlighted Hart's stance. He argued against denying the legality of these laws but proposed acknowledging them as iniquitous to obey or apply. Hart acknowledged a moral duty to disobey inhuman laws but believed that denying their legal status did not advance clear thinking. The internal aspect of legal rules—reflecting a sense of obligation—doesn't necessarily add a moral dimension to the rule, according to Hart. While acknowledging the manifold connections between law and morality, Hart considered these connections contingent rather than necessary or conceptual. He believed that the common stock of legal rules related to civilized living includes moral rules but maintained that the law's enforceability isn't inherently tied to morality. Ultimately, Hart's soft positivism allows for a certain flexibility in interpreting and applying law within moral boundaries but upholds the distinction between law and morality as fundamental. British Legal Positivism British legal positivism has left an indelible mark on jurisprudence, offering significant contributions that have shaped modern legal thought. Rooted in the Enlightenment movement's principles of empirical inquiry and rationality, legal positivism brought a scientific lens to law, moving away from tradition and superstition. The command theory of law, despite its limitations, provided a foundational understanding of law grounded in observable facts rather than abstract beliefs. Bentham and Austin's foundational work paved the way for later thinkers like Hart and Kelsen, who refined and developed legal positivism, making it more nuanced and sophisticated. While legal positivism has been critiqued for its purported lack of sensitivity to moral dimensions, this criticism is often misplaced. Legal positivism actually originates from utilitarian moral theory, aiming to promote the public good. Its core message revolves around differentiating law from morality, emphasizing that improving the law requires a clear distinction between the two. Positivists make a distinct separation between legal duty and moral duty, acknowledging that an unjust law remains law but might warrant moral reasons for disobedience. Modern positivists like Hart and Raz have also bridged the perceived gap between legal positivism and natural law thinking, showcasing a closer connection than previously assumed. Jurisprudence isn't confined solely to the formal definitions and descriptions of law. While legal positivism provides a significant framework, it's not the sole lens through which law can be examined. There's a broad spectrum of inquiries beyond positivism that delve into the normative aspects, the historical, anthropological, and sociological dimensions of law, the evaluation of specific laws' worth, and the moral obligations associated with obeying or disobeying laws. Questions about the emergence of normative content within the law, the societal and cultural aspects influencing legal systems, the moral duties of citizens in relation to the law, and the responsibilities of judges when faced with morally reprehensible laws, like those enacted by the Nazi regime, are all legitimate inquiries. These delve into the intersection of law with morality, society, and individual conscience. Additionally, exploring whether the meaning of legal texts is objectively determinable or whether it's a product of social construction is an intriguing avenue for investigation within jurisprudence. These questions contribute to a deeper understanding of the complexities inherent in the legal system and the multifaceted nature of law within society. MODULE 5 - MODERN LEGAL POSITIVISM 2: LAW AS A SYSTEM OF RULES Chapter 4- Sovereign and Subject Austin’s theory of Law- Behaviourist Theory of Law- explained legal events in terms of order or command given by the sovereign.
