Legal Positivism Vs. Natural Law Theory

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Legal Positivism Vs. Natural Law Theory Powered By Docstoc
					           Legal Positivism
 Two Central Theses
 Broad and Narrow Positivism
 Soft and Hard Positivism
 What is Positive Law?
    – The Command Theory
    – The Social Convention Theory
       Two Central Theses
 Issues of legal validity must be strictly
  separated from questions of morality.
  What the law ought to be has nothing to
  do with what the law actually is.
 There are irreducible facts about
  political society that can only be
  expressed in the vocabulary of the law.
  The study of the law is autonomous.
    Broad and narrow positivism
   Broad positivism (= moral/legal
    conventionalism). There is only the positive
    law: there are no objective, universal facts
    about morality, about what the law ought to
    be like. [Hans Kelsen]
   Narrow (legal) positivism: in addition to the
    positive law, objective moral facts may exist.
    Legal validity is independent of moral
    justifiability.
    Two kinds of (narrow) legal
            positivism
   Utilitarian positivism: there are no natural
    human rights, nothing like a natural law. The
    only moral standard is one of the desirability
    of the consequences of the law. [Bentham]
   Non-utilitarian narrow positivism. There is
    something like natural law (universal human
    rights, universal moral principles).
             Common ground
   A positive law is binding even if it is
    supremely immoral.
   No principle of morality is legally binding until
    it has been enacted into positive law.
   That a statute is legally binding does not
    settle the moral question of whether we ought
    (morally speaking) to obey or disobey the
    law.
    Soft vs. Hard Positivism
 Soft positivism: there is no necessary
  connection between the content of law
  and the truths of morality.
 Hard positivism: there is, of necessity,
  no connection between the content of
  law and the truths of morality.
           Soft Positivism
 Defended by H. L. A. Hart.
 Society may, if it chooses, incorporate
  the principles of morality into the law.
  E.g., prohibitions of “cruel” punishment,
  requiring “just” compensation.
 However, this is merely an option: no
  moral principle is legally binding unless
  it is incorporated into the law.
             Hard Positivism
   Defended by Joseph Raz (Oxford).
   It is impossible for the law to incorporate
    moral ideas or principles.
   Apparent cases of this are merely decorative,
    without legal force.
   Why? The purpose of the law is to enable
    society to avoid and resolve disputes.
    Applications of moral truths are always
    disputable.
      What is positive law?
 The Command Theory (Bentham,
  Austin)
 The Social Convention Theory (Kelsen,
  Hart)
            Bentham/Austin
           Command Theory
   X is the superior of Y if and only if Y is
    in the habit of obeying X, and not vice
    versa.
             The Sovereign
   A collection S of human beings
    constitutes an independent political
    society just in case there is one
    member X (or some compact body X of
    members) of S that is the superior of all
    of the other members of S, and there is
    no human being Y outside of S who is
    the superior of X. In such a case, X is
    called the sovereign of society S.
               Commands
   A command from X to Y is the
    expression, in words or actions, of the
    desire of X that Y act in a certain way,
    backed up by a stated or implied threat
    to impose some penalty on Y if Y does
    not comply.
         General Commands
   A general command is a command
    that is issued to an entire class of
    individuals and that is intended to stand
    for an indefinite period, until revoked by
    its issuer.
              Positive Law
   A positive law is a general command
    issued by the sovereign of an
    independent political society to some or
    all the members of that society.
    Some problems with the
      command theory.
 The theory applies clearly to an absolute
  monarchy, but is much less clear when
  applied to a society where some group is
  the sovereign.
 What exactly does it mean to obey a
  group?
 Can a group issue commands (in
  Austin's sense) -- can a group share a
  single desire?
          More problems
 H. L. A. Hart argues that the command
  theory cannot distinguish between a
  legitimate government and an armed
  robber ("give me your money or else").
  The "Gun Man" objection.
 Parliamentary or constitutional law, laws
  governing the actions of the sovereign,
  do not count as law at all.

				
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