lecture eight Flashcards
Introduction to Legal Positivism
Definition: Law = human-created rules, separate from morality or ethics.
Key Insight: Validity of law depends on verifiable human sources, not natural law.
Era of Great Codifications
19th Century Shift: From customary to codified systems.
Examples:
Code Napoleon (France, 1804)
German BGB (1900)
Austrian ABGB (1812)
Napoleonic Code
Impact: Replaced feudal laws, unified French civil law.
Forward-Thinking: Judges required to interpret law, encouraged accessibility.
Global Influence: Now adopted in ~120 countries.
Austrian ABGB Civil Code
Enacted: 1812, inspired by Enlightenment.
Key Principles:
Innate human rights.
Prohibited slavery and serfdom.
Judge Flexibility: Broad, principle-like provisions.
German BGB Civil Code
Enacted: 1900, extensive and systematic.
Global Impact: Inspired civil law codes in Japan, China, Greece, etc.
Legacy: Categories like obligations, property rights, family law.
Early Legal Positivism (Bentham & Austin)
Core Idea: Law = sovereign command.
Distinction: Law ≠ morality, it’s about authority.
Jeremy Bentham’s Philosophy
Utilitarianism: Greatest happiness = goal of laws.
Critique of Common Law: Rational approach, denounced natural law as opinion-based.
John Austin’s Perspective
Law as Command: Sovereign-issued imperatives.
Mapping Laws: Distinguished “positive laws” from moral and metaphorical laws.
Austin’s Features of Command
Wish of a sovereign.
Sovereign obeyed habitually.
Commands are expressed.
Backed by sanctions.
General in nature.
Duty and Sanctions
Key Idea: Sovereign’s expressed wish + power to sanction = duty to comply.
Distinction: Wish ≠ expression of wish (akin to a bill ≠ statute).
Austin’s Aim: Explains when legal duties exist, not why laws are obeyed.
Law as Social Rules (Hart)
Hart’s View: Law evolves within its social context.
Human Fundamentals:
Vulnerability.
Equality.
Limited altruism, resources, and understanding.
Law: A system of social and obligation rules.
Hart’s Rule of Recognition
Concept: Fundamental rule defining validity within a legal system.
Features:
Duty-imposing on judges.
Compares to a standard, like the “meter bar in Paris.”
Hart’s Primary & Secondary Rules
Primary Rules: Address theft, violence, deception.
Secondary Rules: Allow law adaptation and enforcement.
Rules of change.
Rules of adjudication.
Rule of recognition (ensures validity).
Hart’s Legal System Conditions
Conditions:
General obedience to obligation rules.
Officials accept rules of change and adjudication internally.
Combination = valid legal system.
Kelsen’s Pure Theory of Law
Core Idea: Law = interconnected norms stemming from the Grundnorm (basic norm).
Norms:
Define what “ought” to be done.
Hierarchical system.
Backed by state coercion.
Kelsen’s Legal System
Validates all norms.
Coherence/unity of the legal order.
A hypothetical construct, not tied to morality or politics.
Legal System Effectiveness (Kelsen)
Validity Depends on:
Effectiveness: Laws must be generally obeyed.
Basic Norm: New ones arise after revolutions or government changes.
Law as Social Fact (Raz)
Positivist Tests:
Efficacy.
Institutional character.
Sources of authority.
Joseph Raz’s Concept of Law
Core Idea: Legality ≠ morality; law is autonomous and fact-based.
Key Tenet: Law’s content identified through factual inquiry, not moral judgment.
Trademark: Authority – law asserts primacy over all other codes of conduct.
Raz vs. Other Positivists
Criticized Theses:
Social Thesis: Law = social fact, excludes morality.
Moral Thesis: Law’s moral merit is circumstantial.
Semantic Thesis: Legal/moral terms are distinct.
Accepted Thesis: Social thesis based on:
Efficacy.
Institutional character.
Sources.
Raz’s Approach to Law
Institutional Character: Law tied to institutions like legislatures.
Critique of Moral Obligation:
Law’s functions are value-neutral.
Adjudication involves moral concerns, but doesn’t undermine the sources thesis.
Conformity to rule of law ≠ inherent moral merit.
