Legal Positivism Flashcards
What are the 3 different approaches to legal positivism?
- Approach to study of law - focuses on law as it is; analyses law without ethical judgemen; legal science as systematisation of existing norms
- Theory of law - state-centered conception of law; law is a system of coercive norms; interpretation of law thourgh logical analysis; law is set of enforceable rules derived from the state
- Ideology - law’s validity equates to justice; order and peace is upheld by state-enforced laws; law deserves unconditional obedience, because of its authority and function
Hans Kelsen’s theory of law.
- pure theory = excludes any elements not strictly belonging to law with the view to elevate jurisprudence to the level of true science
- equates state with the law itself
- legal norm = command linking an action to a sanction
- action is unlawful because a sanction is linked to it not because the action is inherently wrong
- distinction between sein and sollen - sein is natural causal relationship; sollen is the domain of law, only hypothetical relationships
- disctinction between primary and secondary norms - primary link sanction to unlawful behaviour; secondary norms prescribe and prohibit specific behaviours
- subjective right = legal position enabling individual to trigger a sanction
- nomostatics = describes norms in isolation
- nomodynamics = describes relationships between norms
- norms are build hierarchically each norms deriving its validity from a higher norm
- Grundnorm = fundamental norm at the top of the hierarchy, assumed as logical necessity not actually imposed
Core idea of Hart’s view on law.
- legal norms are rules accepted and followed in society
- law is a social practice rather than abstract set of principles
- conditions for rule to exist
- regular pattern of behaviour
- critical-reflective attitude among rule followers
- elements of law
- social pressure (ensures conformity)
- practice (regular behaviour, patterns and their acceptance)
- obligations vs. being obliged
Internal and external point of view by Hart.
- Internal point of view
- rule exists when individual adopts critical-reflective attitude towards the behaviour that is supposed to follow
- law is participatory social practice => participants actively accept and apply rules
- obedience is driven by social pressure and the rule’s content
- ** External point of view **
- perspective of outsiders observing the behaviour of participants in the legal system
- Extreme - focuses purely on empirical behaviour without recognising any rules
- Moderate - consideres both behaviour and the rules that guide them to understand social norms
Evolution of legal systems according to Hart.
- evolution from simple normative systems to complex legal systems
- symple systems = norms govern community behaviour
- uncertain
- static nature
- inefficiency
- solution from problems of simple systems is the combination of primary and secondary norms
- primary norms = general standards of behaviour
- secondary norms = provide mechanism to enforce, change and adjudicate primary norms
- rules of recognition
- rules of change
- rules of adjudication
Law as interpretation.
- connected to judicial discretion - judges have to interpret the law
- intepretation requires creativity but also adherence to existent legal principles
- zones of clarity - clear and undisputed application in easy cases
- penumbral areas - require interpretation to resolve ambiguity
- in hard cases judge must interpret and create a new norm
Law and morality according to Hart.
- law and morality are separate
- law is not necessarily connected to moral principles, laws can reflect morality, but are not determined by it
- law have a need for minimum content of natural law, because of:
- human vulnerability
- approximate equality
- limited altruism
- limited resources
- limited understanding and strength of will
- in the postscript Hart recognises himself like a soft positivist, because he affirms that moral criteria can be part of legal system if they are recognised by the rule of recognition
Ronald Dworking and his work.
- Deconstruction phase - criticism of legal positivism, especially Hart; Taking Rights Seriously
- Proposition phase - develops alternative legal theories; Law’s Empire, Justice for Hedgehogs
- advocated for philosophical foundation for legal practice
- opposed abstract theories - real law should be as close as possible to the ideal one
Dworkin’s criticism of Hart.
1) Pedigree thesis
- Hart - rules validity depends on its source, not conent; rule of recognition identifies valid law, moralityis irrelevant
- Dworkin - Hart’s theory ignores principles and is overly simplistic; principles are moral standards inherent to legal practice
2) Discretion thesis
- Hart - judes exercise discretion in hard cases creating new law to fill gaps between rules
- Dworkin - rejects judicial discretion in creating new laws; judges interpret legal framework, guided by underlying principles and values
3) obligation thesis
- Hart - legal obligations arises from social practice when rules are accepted as binding
- Dworkin - legal obligations also arise from principles, not just rules (example of vegetarian)
Typology of legal standards according to Dworkin.
- Principles (general standards with economical or utilitarian goals aiming to achieve general welfare)
- Rules (provide clear and determinate answers to legal questions; rigid application)
- Principles (normative standards expressing moral values; guide judes in decision making; no rigid application)
Difference between rules and principles.
Mode of application
- rules - rigid application, all or nothing
- principles - contextual application, hav to be balanced
Conflict resolution
- rules - one rule invalidates other, two conflicting rules cannot be applied at the same time
- principles - conflicts are rrsolved determining which principles holds greater weight in context at issue
Law as integrity according to Dworkin.
- Chanin novel argument - judges are like authors writing chanpters in a shared book; each judge must ensure their “chapter” aligns with previous, preserving coherence and integrity
- Community of principles - laws arise from shared values; members uphold and interpret laws reflecting equal concern for all
a) special obligations (apply only to the members of the community)
b) equal obligations (even though obligations of each member might differ, they should be distributed fairly) - conditions for community to exist
a) law as integrity
b) law as interpretative social practice
Modes of communities according to Dworkin.
1) De Facto communties (accidental asocciations driven by self-interest; obligations arise from convenience, not shared values)
2) Rule-Book communities (members follow rules out of obligation, but lack true reciprocity; rules are seen as external impositio)
3) Communities of Principles (ideal model in which rules reflect shared values that are historically grounded - not metaphysically)
Law as interpretative practice
- metaphor of a tree
a) trunk - shared concepts of law
b) branches - diverse interpretations
c) roots - historical and cultural grounding - law evolves from historical and onging practices
- obedience requires active, personal engagement, not passive submission
Iceberg metaphor
- legal system is like an iceberg, has visible and hidden parts
- visible part - formal written laws (statutes, court decisions); most recognisible
- hidden part - norms, procedural morality, customs, conventions; build foundation for the visible part
- without hidden part, visible laws lose their meaning and stability
- law is intertwined with moral values
