Introduction à la Théorie Juridique

Introduction to Legal Theory

• The purpose of legal theory is twofold: distinguishing humanity from animality and conceptualizing reality.
• Theorizing, as Descartes argued, is essential for human dignity and autonomy, contrasting with a purely reactive existence.
• Kant highlighted the importance of intellectual autonomy versus heteronomy.
• Legal theory is not universally applicable; parental authority demonstrates this limitation of autonomy.

Philosophy vs. Legal Theory

• Kelsen distinguishes legal theory from philosophy by highlighting its scientific and descriptive nature, emphasizing objectivity.
• Philosophy, according to Hegel, aims to capture reality within its evolving nature.
• Kelsen's view of philosophy is critical, portraying it as employing a non-scientific and normative approach.

Natural Law Limits on Positive Law

• Positive law, in a traditional framework, is contrasted with natural law.
• Natural law theory posits that positive law must conform to natural limits to achieve validity and legitimacy, akin to the control of constitutionality.
• A key aspect of classical natural law, as seen in Antigone, is its divine origin.
• Aristotelian and Platonic thought holds that natural law is based on the nature of things, not divinely ordained, offering a different approach.

Classical Natural Law

• Classical natural law identifies human nature as the source of limits and boundaries on legislation, which is grounded in a more universal justice as presented by Plato.
• Aristotle viewed human law as contingent and needing to adhere to natural law.
• Human lawmakers cannot transcend human limitation.
• Natural Law is more universal.

Modern Natural Law Distinction

• Classical and modern natural law doctrinally differ.
• The distinction, according to some theorists, doesn't exist, because natural law theories have always been present in human thinking, as shown by the work of Aristoteles and Plato, and not as a modern development as suggested by some.

Rousseau, Hobbes, and Condorcet

• Rousseau's philosophy advocates for the inherent goodness of human nature, contrasting with Hobbes's view of an inherently bad nature dictated by the state of nature.
• Hobbes perceived human nature as fundamentally self-interested and needing government.
• Condorcet emphasized human perfectibility because of a balance between reason and sensory faculties.

The Role of Institutions

• Institutions shape human nature positively or negatively depending on their design.
• Institutions influence the development of human nature, either hindering or enabling progress.
• Institutions play a crucial role in the cultivation of positive attributes in humankind.

Criticism of Natural Law

• Hume critiques natural law theory for inferring "ought" from "is," demonstrating that ethical principles cannot be derived logically from factual observations.
• Hume points out the flawed reasoning in deriving moral precepts from empirical observations about nature.
• In essence, Hume challenges the logical coherence of the relationship between observable facts in nature and the ethical principles derived from it by theorists of natural law.

Kelsen's Pure Theory of Law

• Kelsen's pure theory of law emphasizes a scientific approach and the separation between law and morality.
• Kelsen advocates for a systematization of law and emphasizes separation between what ought to be and what is.
• Kelsen challenges the idea that law is founded on values above law; law ought to be a system of norms.

The Fundamental Norm

• Kelsen's concept of the Grundnorm (fundamental norm) is a crucial component for the legal system.
• The Grundnorm is an undemonstrated assumption in the system of norms—no point exists to show the norm is valid and there is no ultimate norm.
• Kelsen argues for a hierarchical organization of norms, with a fundamental norm at the apex.

Limits of the Pure Theory of Law

• Critics argue that Kelsen's theory ignores the role of politics and morality.
• Critics contend that the pure theory of law fails to address the practical and substantive implications of legal application.
• Critics suggest that it detaches law from its social context and societal impact.