LAWS2249-10597-Lecture 7 LT08

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LAWS2249-10597-Lecture 7 LT08 Powered By Docstoc
					                  Legal Theory
                    Lecture 7
        The Critique of Legal Positivism

   Descriptive Critique of Positivism – LP
    provides an incomplete account of what law is

   Political Critique of Positivism – LP provides
    a politically dangerous understanding of what
    law and legal practice involve
   Law is that set of social rules comprising primary
    rules which regulate behaviour and associated
    secondary rules which establish practices,
    mechanisms and institutions by which to
    determinatively recognise, change, adjudicate
    and enforce the legal rules.

   Law comprises a set of primary rules backed by
    institutions of law-making, adjudication and
    enforcement (execution) established by
    secondary rules.
Primary legal rule - regulating behaviour


  Interfering with political liberty
  Any person who, by violence or by threats or
    intimidation of any kind, hinders or interferes with the
    free exercise or performance, by any other person, of
    any political right or duty, shall be guilty of an

  Penalty: Imprisonment for 3 years.
Secondary legal rule(s) – establishing a rule of
  recognition for the Commonwealth

   Comprises (in part) the various Cth Constitutional
    provisions and other associated statutory provisions,
    regulations, standing orders, conventions etc
    establishing a Parliament (s.1), granting it legislative
    powers on a range of topics (s.51), regulating its
    membership (s.44), regulating its procedures (ss.39,
    40), and so on.

   A social rule which exists in a given jurisdiction as a
    result of social practices carried out in accordance with
    the rule(s) of recognition for that jurisdiction is a valid
    legal rule (legislation or a legislative provision) of that

   Similar rules of recognition exist for executive and judge-
    made laws.
    What makes s.28 of the Cth Crimes Act a (valid) primary
                   legal rule in Australia?

   First, it meets the requirements of being an obligatory
    social rule (required degree of general compliance,
    required degree of critical reflective attitude, perceived
    importance to society, etc.)

   Second, it meets the requirements for being a legal rule
    set down by the rule(s) of recognition operative within
    Australia – it was enacted and is presently maintained by
    authorised officials according to officially (and generally)
    recognised procedures, and so on.
        This is to say that it satisfies the kind of statutory validity
         analysis you learned in APL.
   Social morality is that set of socially
    important primary rules governing human
    behaviour which does not have an
    associated set of secondary rules by which
    to determinatively recognise, change,
    adjudicate, and enforce the primary rules.
    Features of a Social Morality or Moral Rule
   Considered important to social well-being

   Uncertain – no rules by which to definitively determine
    what is moral (what is a moral rule) and what is not

   Static - immune from deliberate and immediate change

   Inefficient – no authoritative agency (person or
    institution) empowered to ascertain finally and
    authoritatively the identity of the moral rules and the
    fact and consequences of violation

   Non-organised and generally non-coercive sanctions
   Law possesses a set of institutions of
    recognition, change, adjudication and
    enforcement which morality does not

   This feature of law is potentially of both
    great benefit and great risk per Hart,
    Waldron and Green.
   Law may be an instrument serving the
    welfare and interests of all of a society‟s
    members both generally and in times of
    social, environmental, and technological
    challenge or threat.

   Law may also be an instrument serving
    the interests of only some of a society‟s
    members against the interests of the rest.
   Which way law goes here depends importantly
    on which set of the society‟s members has
    ultimate control over its secondary rules and
    institutions of law-making, execution and
    adjudication (the institutions of state).

   All that is necessary for secondary rules to
    operate within a society is for there to be
    substantial compliance with those rules by
    relevant officials (legislators, government, public
    service, police, armed forces, intelligence etc.)
   If relevant officials are co-opted by some group
    within a society (by coercion, threat, material
    benefits, education, etc) then that group will
    have control over the operation of the secondary
    rules and institutions and thereby over the
    content and operation of the primary rules
    regulating the rest of the society‟s members.

   This is an enormous amount of power.

   Given the nature of humans (some good some
    bad) and the nature of law this situation is
    always a possibility in any human society.
Possibility of:

   Autocracy – rule by one person
   Monarchy – rule by a royal social class
   Plutocracy – rule by the rich
   Technocracy – rule by a technologically literate
    and skilled elite
   Bureaucracy – rule by officials
   Martial law - rule by the military
   Majoritarianism – rule by a political majority
   Democracy – rule by (all) the people
   Secondary rules also pose a risk of alienating
    many people from their law (primary and

   This aggravates the risk of the co-option of law
    by an elite because the people are not
    sufficiently informed about the workings of the
    law and the state which governs them.

   Ignorance of law and government aggravates
    the risk of oppression by means of law and
   Note the many institutions in our society
    established to address this problem –
    including the legal profession itself.

   Note your responsibility to society as
    someone who is not alienated from and
    ignorant of law and government.
   Hart and Waldron argue that adopting a
    positivist understanding of law enables the
    people of a society (or some sub-group of
    people) to always be aware (at least) of
    both the benefits and the risks that their
    legal system holds for them.

    This renders people more able to
    effectively respond should the law be used
    by others against their interests.
   For Waldron, Hart and contemporary legal
    positivism offer not merely a descriptively
    superior account of law but also a
    politically superior account for liberal

   Specifically, legal positivism is a superior
    theory of law (both descriptively and
    politically) when compared with
    contemporary natural law theories
   Note the compatibility of Hart‟s theory of law
    with the views of many critical legal theorists.
    Hart‟s model of a legal system may provide a
    basis for a critique of some or all legal systems.

   Unlike, certain critical theorists Hart is not
    arguing that all legal systems or any given legal
    system (ours, for example) are oppressive or
    unjust. He is just pointing out that they might
    be. Whether they are or not is to be decided by
    empirical research into those legal systems.

   But also see the critique of Hart and Legal
    Positivism by the critical theorists Young and
Contemporary Natural Law Theory
  and the Critique of Positivism
   Inseparability thesis (NL) - there is a
    necessary (fundamental) connection between
    positive law and some specific set of moral,
    religious or other normative principles/values.

   Separability thesis (LP) - there is no
    necessary (fundamental) connection between
    positive law and any specific set of moral,
    religious or other normative principles/values.
   Classical NL view – positive law that does not
    reflect the specific tenets of the divine or natural
    law is not „really‟ law at all.

   Hence, it does not impose (legitimate) legal
    obligations for citizens or officials (they are
    under no legal (or moral) obligation to obey
    such law).

   These natural law „rules‟ are generally conceived
    of as being somehow independent of or external
    to the positive law.
   Contemporary NL view – all positive
    law necessarily embodies a specific set of
    natural law norms (moral/political
    principles) without which it is not „really‟
    law and does not impose (legitimate) legal
    obligations upon citizens and officials.

   These natural law norms are not external
    to the positive law (contra classical NL)
    but are somehow inherent in law and legal
    Hart‟s Minimum Content of “Natural Law”

   If a society is to survive as a viable society (and
    not be a “suicide club”) then its legal system
    must contain certain minimal standards as rules
    (minimum content of natural law).

   Law must contain rules which impose constraints
       Interpersonal violence
       Theft and destruction of personal or communal
        property (resources)
       Breaking of agreements between people
   “Such universally recognised principles of
    conduct which have a basis in elementary
    truths concerning human beings, their
    natural environment, and aims, may be
    considered the minimum content of
    Natural Law…” Hart p.189.

   These basic standards serve as further
    existence conditions for the ongoing
    existence (survival) of a legal system.
   Hart‟s point is not that a legal system
    should embody these basic standards as
    a moral or religious matter but rather
    that one that does not will as a matter of
    fact not survive for very long.

   Hart is making a descriptive point, not a
    normative one in the classical NL sense.
       The standards in question are factual
        existence conditions and not independent
        moral standards imposing independent
        obligations on us.
   These standards impose no obligations on
    us independently of the legal obligations
    of the positive law and, therefore, play no
    independent role in the deliberations of
    citizens or officials about whether they
    should obey the positive law or not.

   Is Hart‟s use of the term „natural law‟ for
    these standards misleading? Is this a
    concession to natural law theory? Is it a
    problem? Why?
            Lon Fuller on Law
   In addition to the existence conditions
    which Hart identified, a legal system must
    also embody certain additional „moral‟
    standards (the inner morality of law)
    without which it is not „really‟ a legal
    system and does not impose (legitimate)
    legal obligations upon its subjects.
Fuller’s 8 Requirements of Law
In a proper legal system the laws must be:

   General, not ad hoc
   Published
   Prospective, not retroactive
   Intelligible
   Consistent
   Capable of being complied with
   Enduring without undue changes
   Applied in the administration of society.
Why are these requirements of law „moral‟?
"For Fuller the legal obligation to obey laws does
  not automatically follow from their enactment by
  an [officially] recognised, formal procedure [Rule
  of Recognition]. It depends on the legal system's
  claim and ability to command what Fuller calls
  fidelity to law. When certain minimum moral
  qualities cease to exist in a legal system, it
  ceases to command fidelity [and] ceases to have
  a claim to citizens' obedience". Cotterill.

OED – Fidelity - the quality of being faithful
   For Fuller a legal system must constitute a set
    of rules which its subjects can not merely
    comply with but also (to some degree) have
    faith in, believe in, accept etc.

   In order for people to have faith in a legal
    system it must have a minimum moral
    content as far as its subjects are concerned
    (and preferably more than this).

   "The order and coherence of a legal system (its
    ability to function) depend on a minimum moral
    content. Without this it ceases to be a legal
    system at all". Fuller
   Fuller's minimum or inner morality of law
    is largely procedural, "relating to the
    way law is created, expressed, interpreted
    and applied rather than to any particular
    substantive content of legal rules". Query

   A legal system which maintains certain
    procedural/moral defects cannot
    command the fidelity of a subject people
    and, therefore, cannot have authority over
   "The authority of law (its capacity to
    demand fidelity) derives from a moral
    understanding between rulers and
    ruled, such that citizens accord moral
    respect to the constitution [secondary
    rules] which governs them as necessary,
    right and good". Fuller
   Where the inner morality of law is
    substantially breached by the State
    "there can be no moral understanding
    between rulers and ruled. The ruled have
    no chance to orient themselves to the
    dictates of the ruler's authority. Although
    they must obey, they are not given a
    reasonable chance to do so in an orderly
    and rational manner". Fuller
   "To me there is nothing shocking in saying that
    a dictatorship which clothes itself with a tinsel of
    legal form can so far depart from the morality of
    order, from the inner morality of law itself, that
    it ceases to be a legal system. When a system
    calling itself law is predicated upon a general
    disregard by judges of the terms of the laws
    which they purport to enforce, when this system
    habitually cures its legal irregularities, even the
    grossest, by retroactive statutes, when it has
    only to resort to forays of terror in the streets,
    which no one dares challenge, in order to
    escape even those scant restraints imposed by
    the pretence of legality - when all these things
    have become true of a dictatorship, it is not hard
    for me, at least, to deny it the name of law".
    (Fuller - Harvard LR article at 660)
   There is some ambiguity in Fuller‟s work about
    the nature of law‟s inner morality.

   On occasions he implies that a legal system
    must also embody certain liberal democratic
    values and fundamental human rights in order
    to gain the fidelity of its subjects.

   The more morally good a legal system is the
    more fidelity it will gain – the more truly legal it
   Is Fuller‟s inner morality of law merely another
    set of descriptive existence conditions for law? Is
    Fuller just another kind of positivist? Is Fuller
    correct here as a descriptive matter about the
    existence conditions of law?

   What did Hart say about the need for the
    population at large to respect (give fidelity to)
    the legal rules in order for them to be
    maintained in the society? Who is right on this
    point – Hart or Fuller?

   Is Fuller correct to describe his requirements as
   Does a legal system need more than these
    procedural requirements to command the fidelity
    of its subjects? Must it have some substantive
    moral content – certain basic human rights, for
    example? See Dworkin and Dyzenhaus on this.

   Couldn‟t a morally evil regime operate in
    accordance with these procedural requirements?
    Wouldn‟t these requirements make the operation
    of that regime even more effective? How are
    they then moral?
    Fuller‟s Political Critique of Legal Positivism
    If law is understood as merely a matter of
     positive rules (and not moral or political values)
     and if the role (legal obligation) of a judge,
     official or lawyer is understood as being to
     interpret and apply the law to a dispute or
     situation, then it follows that a judge, official or
     lawyer is not legally justified in relying upon
     moral or political values in performing their role.

    Compliance with their legal obligation involves
     compliance with the positive rules and nothing
     else, no matter how unjust or immoral those
     rules are.
   By separating legal and moral obligation,
    positivism enables officials to avoid taking a
    moral-political critical stance in relation to the law
    they apply.

   Positivism encourages officials to believe that
    the practice of law and the exercise of public
    power is a neutral matter of identifying and
    applying the rules without reference to questions
    of morality or the moral content of those rules.

   LP encourages lawyers and officials to not let
    their normative concerns inform their practice. No
    place for a lawyer/judge to question the morality
    of law within the legal system itself.
   This encourages a moral-political conservatism
    and quietism within the legal sphere.

   This aggravates the risk of evil laws being
    imposed upon the people and disempowers an
    important institutional obstacle to injustice.

   The legal system can offer no opposition to
    injustice if it embraces legal positivism.

   See also Davies and Young on this point.
   Compare this argument to Waldron‟s
    contrary argument about the political
    benefits of embracing positivism.

   Which argument is more plausible? Why?
   A further problem of positivism, say
    natural law and other critics, is that
    citizens may be erroneously led to think
    that the moral and political views of judge,
    official or lawyer are not playing a role in
    judicial, official and legal practice, when in
    fact they are. This aggravates the risks a
    legal system poses towards its subjects.

   Positivism is ideological, in this sense
   If law is understood as merely a matter of
    positive rules (and not moral or political
    values) and if from a legal standpoint the
    role of a citizen is understood as being to
    obey the law, then it follows that from the
    legal standpoint that a citizen is not legally
    justified in disobeying the law in the
    service of some set of moral or political
       We may want the legal system to make room
        for legitimate civil disobedience in some cases
        from time to time.
   If law is understood as merely a matter of
    positive rules (and not moral or political
    values) and if law schools are
    understood as being designed to teach
    students the nature and practice of law,
    then there is no room in a law school for
    subjects which call for reflection upon the
    moral or political status of law
    Waldron‟s Political Critique of Natural Law
   By associating the very idea of law with a certain
    set of desirable moral or procedural norms,
    Fuller and other natural law theorists encourage
    citizens and officials to believe that law is
    necessarily a good thing and, therefore, that the
    positive law they have is a good thing.

   This, in turn, encourages citizens and officials to
    let their moral-critical „guard‟ down in relation to
    the positive law and to adopt a disengaged or
    passive approach to law and the state.
   This, in turn, heightens the risk of the positive
    law coming under the control of judges, officials
    or some other group.

   By conflating legal obligation with moral
    obligation, Fuller and the natural lawyers leave
    citizens nowhere to stand when seeking to take
    a moral-political critical stance in relation to the
    positive law.
   For Hart, "to say that a rule is a valid law
    (judged by positivist standards) merely
    asserts the existence of legal obligation.
    Whether one ought morally to disobey an
    unjust law is a matter about which
    positivist analytical jurisprudence can
    remain uncommitted, for moral issues are
    not within its province".
   For Fuller, Hart's view "is unrealistic and
    dangerous. It oversimplifies the problems
    of obligation under a manifestly unjust
    regime and it sets up an unreal opposition
    - a legal obligation to obey as against a
    moral obligation to disobey - as if one can
    keep them separate. It assumes that there
    can be order in a legal system without
    there being any moral content in it".
2 issues:

1. Can one keep separate one‟s legal and
  one‟s moral obligations?

2. Can there be an entirely immoral legal
  system or a legal system without any
  moral content?
"Modern positivists take it to be a virtue of
  their theory that the sharp distinction
  between what law is and what law ought
  to be makes it a visibly open question
  whether citizens are morally bound to
  carry out their obligations"
                     Campbell in Davies n.29.
    Questions on the Political Dispute Between
                LP and its Critics

   Who is correct in their ethical/political critique of
    the other?

   Do both sides have a point? Are both sides
    misguided about the faults of the other?

   What are the responses of each to the critique
    of the other?

   Which approach is the most plausible for you?
   Use the analysis of this argument between
    Legal Positivists and Natural Lawyers to
    develop your capacity to understand and
    critique theoretical arguments, as well as
    other arguments in general.
   What are the ultimate positions or
    conclusions of the theorists in question?
   What reasons do they offer in support of
    these conclusions?
   What evidence or reasons do they offer in
    support of these reasons?
   Is their supporting evidence or reasoning
    plausible or persuasive? Why?
   What are the strong and weak points of
    their argument?
   Overall, then, how do their arguments
    stand up to scrutiny?

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