Positivism (Austin, Hart, Raz, Kelsen)

Question 1

AUSTIN: Purpose of Theory

Answer 1

Focus on the law rather than its underlying moral principles; lower the discuss away from GROTIUS and HOBBES.

GROTIUS - Everyone has right to self-preservation, law demarcates one’s existing rights (underlying system of reasonable entitlements) in the state of nature.

HOBBES - Everyone has right to self-preservation. Law creates peace by ending conflicts in the state of nature due to overlapping entitlements.

Question 2

AUSTIN: Definition of Law

Answer 2

A command (that is general and backed up by threat of sanction) by sovereign (who is habitually obeyed and obeys no one). No reference to morality nor necessity that commands is just or moral or grammatically correct.

ISSUE 1: Can’t explain international law or customary law as they aren’t backed up by threats of sanction.

ISSUE 2: Definition is a realist rather than positivist because if command is backed up by sanction there is no obligation to follow it.

Question 3

AUSTIN: Role of Law

Answer 3

Law is a fact and a tool to mediate between different world views; inviting moral elements leads to more disagreements and if there are disagreements the law can’t mediate.

Question 4

AUSTIN: Obligation

Answer 4

We follow the law due to a psychological feeling of fear of punishment or sanctions.

Question 5

HART: Critique of Austin

Answer 5

1. Under Austin, there is no difference between rule of law and rule of mob. (Austin doesn’t explain legitimacy)
2. Not all laws are commands i.e. power-conferring rules.
3. Lawmakers (sovereign) are bound by laws they make.
4. Doesn’t explain durability of law; a new sovereign has yet to be ‘habitually obeyed’.
5. Cannot explain the ‘Rule of Recognition’

Question 6

Purpose of HART’s Theory

Answer 6

Find the central case of law by invoking the ‘cluster concept’. Includes elements of morality even though morality is not relevant to the central case of the law. Like Austin, he always believes the law to be a social fact.

Question 7

HART: Definition of Law

Answer 7

Primary Secondary + Secondary Rules (PR + SR)

• PR: Rules about people’s conduct.
• SR: Rules about rules.

Question 8

HART: Can Legal System Contain Just Primary Rules?

Answer 8

No, because we don’t know which rules are valid and how to differentiate between valid and invalid rules; nor do we know what happens when rule is breached.

Legal System requires 1) that officials accept the RoR and 2) citizens obey PR emanating from RR: Both are necessary and sufficient conditions.

Question 9

HART: Secondary Rules

Answer 9

SR includes:

• Rule to Change (another rule).
• Rule of Recognition (master rule which identify valid or invalid laws).
• Rule of Adjudication.

Question 10

HART: The Rule of Recognition

Answer 10

Single, master rule which determines legal validity; tells you what counts as the law. Judges adhere to RoR when adjudicating and its existence is ascertained by observing judges applying it.

I.e. Canadian Charter of Rights and Freedoms and US Constitution.

Question 11

HART: Role of Law

Answer 11

Similar to Austin, law is devoid of any moral references; there is a difference between legal ought and moral ought.

Question 12

HART: Obligation

Answer 12

Practice Theory of Rules: We follow because we internally accept the rules - Social Normativity. This is neither a moral or Austin’s psychological obligation.

Obligation: Not the same as being obliged; it doesn’t depend on your motives nor beliefs

Internal Acceptance: Not accepting because its always been done (external), accepting because you accept the rule that tells you that you can’t do X. Acceptance involves:

• Wanting to comply.
• Ready to call out others who don’t comply.
• Willing to be called out if I don’t comply (the rule itself justifies the criticism).

Question 13

HART, AUSTIN and RAZ: Adjudication

Answer 13

AUSTIN: When judges decide cases, no need to import any morality to decisions.

HART: Morality plays no role in adjudication but acknowledges that in practice adjudication often satisfy certain demands of morality. (Soft-positivist)

RAZ: Morals can never be part of determining what the law is. (Hard-positivist)

Question 14

RAZ: Role of Law

Answer 14

Law can only fulfil its function if content can be identified without referring to morality.

Question 15

RAZ: Obligation (Critique of HART)

Answer 15

RAZ: Obligation doesn’t come from glorified social pressure (i.e. social normativity). Obligation comes from regarding doing X as just and endorsing it as part of my moral views or views about what ought to be done. (Justified normativity).

Obligation to follow the law arises in legitimate authority.

Question 16

KELSEN: Purpose of Theory

Answer 16

Attempt to single out law without reference to anything else.

Question 17

KELSEN: Definition of Law

Answer 17

Purest positivism: Law is validated by another law at a higher level which confers it validity.

The highest level is called ‘the basic norm’ and it needs to be presupposed. (you have to believe that its there for the theory to make sense, just like God in Christianity #blessed)

Question 18

KELSEN: Role of Law

Answer 18

Law explains the world and vies it legal-normative (unnatural) meaning to specific acts and events: i.e. shining of a red light means stop.

Question 19

KELSEN: Obligation

Answer 19

Obligation arises from belief in the basic norm. If you believe in God, you will have an obligation to follow the ten commandments.

Question 20

Explain: Why Positivists Hate Morality

Answer 20

The law is a rational discourse so it can be subject to meaningful rational criticism; but moral discourse is not a rational discourse so it can’t be subject to meaningful rational criticism; thus morality and law are separate doctrines.

HUME: Morality has to be understood as a desire, and desire is not a rational discourse.