Legal positivism

Superiority and Command

"It also appears from what has been premised, that superiority and command are inseparably connected terms: that each embraces the same ideas as the others, though each denotes those ideas in a peculiar order or series." - The Province of Jurisprudence Determined, (J. Austin, 1832, Lecture 1)

"Laws and other commands are said to proceed from superiors and to bind or oblige inferiors. Superiority is often synonymous with precedence or excellence. But, taken with the meaning wherein I here understand it, the term superiority signifies might: the power of affecting others with evil or pain, and of forcing them, through fear of that evil, to fashion their conduct to one's wishes. It appears, then, that the term superiority (like the terms duty and sanction) is implied by the term command. For superiority is the power of enforcing compliance with a wish: and the expression or intimation of a wish, with the power and the purpose of enforcing it, are the constituent elements of a command."

"The Province of Jurisprudence Determined," (J. Austin, 1832, Lecture 1)

There can't be a command without a sanction, and duty is connected to commands as well: you can't have an obligation without a command. COMMAND = expression of will backed by a sanction.

Law must come from an authority (= sovereign) able to apply force and sanctions.

Legal obligation is the probability of incurring in a sanction while breaking the law.

Austin is monistic and reductionist: he eliminates the dichotomy between fact and norms; duties, sanctions are reduced to what happens as a fact. Sanctions are facts, if you reduce norms to sanctions, then you reduce norms to facts.

b) KELSEN'S MODEL

"Pure" theory of law = it has to do with the general form of law. Neo-Kantianism: Kelsen applies Kant's method (= knowledge through categories and transcendentals, cause-effect: we categorize the world according to this order) to law, in order to describe the basic categories of

law.Kelsen wants to define legal science defining the object of study: he defines the legal domain as different from other normative phenomena (moral, theology…) and as different from nature.

Kelsen is dualistic and non-reductionist (= normativist): he doesn’t reduce norms to facts. Introduction to the Problems of Legal Theory, (H. Kelsen, § 15)

The basic categories of law are:

1. Category Laws of nature: if A — be B, principle of causality
2. Norms: A norm is different from the behaviour of those who abide by it. A— right is not a factual power: norms are not facts. They don’t belong to the being, Ought (Sollen): domain of but rather to the domain of if A — ought to be B, principle of imputation.

In “A — ought to be B”, A is a subjective ought. But law is an objective ought: it must remain the same when viewed from different perspectives; it must be independent from the persistence of those who have framed it; it must be independent.

from our acceptance or knowledge.How can it be possible? Under which conditions can an Ought be objective?

If an act has an objective legal meaning, so it is an objective ought = a legal norm. And also, a valid norm qualifies an act, so the act = act with an objective legal meaning (norms as "schemes for qualification").

A norm (objective ought) is qualified by an act (with an objective legal meaning), which is qualified by a norm ... etc. It's a legal system as a dynamic construction "by steps", a legal system (vs static normative competence systems), with norms. Legal validity = objective ought = being part of a legal system, ≠ factual existence (according to Austin legal authority factual, is you must simply have the brutal power of enforcing laws; while according to Kelsen legal authority is a normative feature, you have it if there's a norm that allows you to have it). How do you end that regress? Basic norm: the Constitution was created by an act,

which was created by the basicnorm: the will of the ”Founding Fathers” (Constituent Assembly) is legitimate,transcendentalit’s presupposed (and not enacted) as a condition thatmakes it possible to understand the legal system as a system of objectiveBasic Normnorms. The is the foundation of a legal system that is “by andlarge” effective. It’s not part of the system, it’s a presupposition. But it mustbe presupposed at the foundation of a legal system which is overall effectivePrinciple of effectiveness:(= in general applied or followed). the effectivenessof the legal system considered as a whole is a necessary condition for thevalidity of every single norm, but it’s the basic norm that gives validity tothose norms. Introduction to the Problems of Legal Theory,(H. Kelsen, § 27)

2. ContentTheory of norms as based on coercion. In “if A — ought to be B”, B is a judges,sanction. Kelsen is, in this case, reductionist:

Norms are addressed to legal norms are first of all addressed to officials who apply the law. Normally, primary norms are addressed to citizens and secondary norms to officials; but according to Kelsen it's in reverse: secondary norms are fragments of norms that rule behaviors, addressed to citizens.

Function: Law as a technique for creating motives of behavior. Laws are built to be indirectly applied (it has a way to motivate behavior: e.g. it doesn't offer money to follow a certain behavior but it punishes if you don't).

In Kelsen, norms = sanction, duties (and rights), power, law as it is.

HART'S MODEL

Kelsen: Introduction to the Problems of Legal Theory, (H. Kelsen, § 15)

"If it were true that the statement that a person had an obligation meant that was likely to suffer in the event of disobedience, it would be a contradiction to say that he had an obligation, e.g. to report for military service but that, owing to the fact that he had escaped from the jurisdiction."

or had successfully bribed the police or the court, there was not the slightest chance of his being caught or made to suffer. In fact, there is no contradiction in saying this, and such statements are often made and understood”. The Concept of Law,(H. L. A. Hart, 2nd. ed., Chapter 5, Sec. 2)

According to Hart, a legal system has a Rule of Recognition as a fact, a meta-rule whose acceptance is shown in the linguistic behaviour of judges. This Rule of Recognition is the criterion of validity of every norm: a particular rule is valid if it satisfies all the criteria provided by the rule of recognition. It must be accepted by the system’s officials.

Hart focuses on social facts and conventions and emphasizes the participant’s perspective on legal practice, insisting on the variety of law: legal systems contained laws directed to citizens (primary rules) and rules that told officials how to apply primary rules (secondary rules).

LEGAL POSITIVISM: PROBLEMS

It can legitimate evil

regimes

Formalism

Anti-pluralism: only the State can enact law

No space left for the creative activity of judges

Jurisprudence is a science, but what sort of science? No natural science:

law ≠ natural justice; no social science: law ≠ social phenomena; no psychology: law ≠

ADVANTAGES

• The quest for objective science: Jurisprudence and legal doctrine
• Certainty of law
• The role of force in the law
• Limits to the arbitrariness of judicial decision
• The "rule of law"

Dworkin's criticism to Hart: Law is necessarily connected with morality

Finnis's criticism to Hart: Law is necessarily connected with morality (see the slides on natural law theory)

Exclusive legal positivism (Raz): Necessarily, law is not connected with morality

Inclusive legal positivism: Law can be connected with morality, but this is not necessarily so

DWORKIN'S CRITIQUE - LAW'S NORMATIVITY necessary conceptual connection between law and

According to Dworkin,

there’s amorality.

Concept of law: force and sanctions are applied under a scheme of rights and duties.

Conceptions of law:

• conventionalism = a community's legal institutions should contain clear social conventions; rules are promulgated upon them
• pragmatism = law as integrity = judges should identify legal rights and duties on the assumption that they were all created by the community as an entity

Law as integrity: legal sanctions are justified only if they are applied on the basis of the value of integrity, specifically if this application is a contribution to the community of principle.

Criticism against Hart: law cannot be based on moral values. There are three kinds of community:

1. de facto community
2. “Rulebook” community
3. community of principle

«Equal concern and respect» Integrity with respect to 3 moral values:

• Fairness
• Justice
• CONSTITUTION

Due process

— THEORY OF NORMS (hard

Rules + principles create the correct legal decision

Rules regulate a precise kind of behaviour in a definitive way; they either hold or do not hold for a given situation. Principles prescribe that something (a state of affairs or a kind of behaviour which is left vague on purpose) must be realized to the greatest extent possible given the circumstances. They are balanced, with respect to the concrete case at hand and other principles.

- LEGAL SCIENCE, LEGAL REASONING coherence

In hard cases, judges must decide according to with the history and principles of the legal system: this gives the correct solution, even in absence of clear rules or when rules lead to morally unacceptable consequences.

See Riggs v. Palmer, 115 N.Y. 506 (1889), an important New York state civil court case, in which the Court of Appeals of New York issued an 1889 opinion.

In Riggs, a probate suit, the plaintiffs, Mrs. Riggs and Mrs. Preston, sought to invalidate the will of their father Francis B. Palmer;

Testated on August 13, 1880. The defendant in the case was Elmer E. Palmer, grandson to the testator. The will gave small legacies to two of the daughters, Mrs. Preston and Mrs. Riggs, and the bulk of the estate to Elmer Palmer to be cared for by his mother, Susan Palmer, the widow of a dead son of the testator, until he became of legal age. Knowing that he was to be the recipient of his grandfather's large estate, Elmer, fearing that his grandfather might change the will, murdered his grandfather by poisoning him. The plaintiffs argued that by allowing the will to be executed Elmer would be profiting from his crime.