Modern Legal Positivism: Rule of Law

• Session 3 and 4 cover modern legal positivism, why we obey law, and the rule of law

Justification of Legal Rules

• The core question is whether a law is followed because it is inherently just (ius quia iustum) or because it is imposed by a legitimate authority (ius quia iussum)
• There are universal moral standards inherent in humankind that should form the basis of a just society and legal rules
• These rules of right and wrong are inherent and should not be made by society or judges

St. T. Aquinas

• His 13th-century doctrine believes civil laws should be based on morality, ethics, and what is inherently correct

Scholasticism

• Medieval philosophy that reconciled Christian theology with classical philosophy, emphasizing human reason in understanding divine truths, led to a more human-centered approach
• Thomas Aquinas' philosophy places importance on human dignity, rationality, and moral agency within a God-centered framework, recognizing human beings in understanding divine law

Radbruch Formula

• Natural rights exist independently of human-made laws and that laws should be based on evident moral principles, thus a law contradicting natural law is considered unjust

Legal Positivism

• 19th-century idea from Austin John and Kelsen influenced by rationalism, empiricism, and scientism as a reaction to natural law
• Positive laws are man-made rules created in the context of society to provide clarity and certainty to address perceived ambiguity

Separation of Law and Morality

• Considers "what the law is" as a social fact distinct from "what the law ought to be" which is a moral judgment
• Human legal systems should be studied empirically and in a value-free way
• The objective is to make law more predictable, objective, and detached from moral considerations
• Legal rules are defined by the sovereign authority
• Crucial in modern states for administering justice, independently of moral beliefs of judges and citizens

Values of Legal Positivism

• Rules are only those written, requiring judges to decide cases in accordance with the law regardless of social or moral rules
• People obey rules due to a habit of obedience to a sovereign body and with the threat of sanctions

Concerns Shaping Modern Legal Positivism

• Can justify immoral laws enacted by legitimate authority, endorses unjust laws by focusing on the law's source, and focuses more on the conditions under which laws are valid

Post-WWII Reconciliation

• Underpinned by recognition of human rights
• Incorporation of natural law into substantive justice principles, coexisting alongside positive law, grounded in the rule of law, commenced with the recognition of human rights by H.L.A. Hart

Distinction Between Legal and Moral Rules

• The core difference lies in their sources, nature, and the obligations imposed
• Legal rules derive enforceability from formal enactment by legitimate authorities, while moral rules are rooted in ethical principles and personal beliefs, therefore lacking legal enforceability

Ensuring Justice

• Unjust laws must be amended by the legislature, reflecting the core principle of the rule of law
• Legal systems must have mechanisms to correct injustices, aligning authority with justice using secondary rules

Human Rights

• Serve as a fundamental limit in non-confessional legal systems
• Laws align with substantive justice principles
• For a law to have validity, it must respect the right to equality

Role of Laws

• Regulate power attribution, exercise of individual autonomy, boundaries for private autonomy, and balance freedom with social responsibility
• Legal systems also acknowledge their dynamic nature and are adaptive over time

Legitimacy of Laws

• Rule of recognition (a secondary rule) provides legitimacy for laws and provides a framework to ensure their acceptance and adherence to the rule of law

Post 1990 Modern Legal Positivism

• Recognizes interaction between national and international law
• Analysis of human rights as part of legal systems
• Incorporates pragmatic, sociological, and philosophical elements for the effectiveness of norms

Campanelly - Surrogacy Case Study

• Distinguishable because in Paradiso, there was no genetic link between the child and the applicants
• Case did not concern the registration of the Russian birth certificate in Italy
• The child was not a party to the proceedings in this case
• Intended parents did not have legal standing
• Courts need to consider whether Italy's laws concerning surrogacy are applied correctly according to domestic rules and procedures
• Key issue was whether there was a de facto family life so as to prevent an interference in the applicants' private life
• Lack of genetic link and other laws meant the child needed separation from the applicants.
• Domestic law and public order prevail
• The concept of the child's best interests is inherently subjective

Justice and the Law

• Law is expected to be just and satisfy a degree of morality to serve equality, fairness, and justice
• The aim is peaceful coexistence, exchanging freedom for cooperation and safety
• Morality, reasonableness, and legal certainty explain the function of the law for just behavior
• Moral norms might not be translated into legal norms or encompass all unethical actions

Public Order

• Shared values are found on international level and include a set of beliefs, principles and norms of behaviour
• Public order ties a society together
• Maintains societal harmony, peace, and stability through rules and regulations
• Laws play a crucial role in defining and enforcing conduct
• Establishes a framework of rules reflecting the community's prevailing moral standards
• Moral principles guide the system in contentious areas with some exceptions

Rule of Law

• Refers to governance where all persons, institutions, and public and private entities are accountable to publicly promulgated, equally enforced, and independently adjudicated laws consistent with international human rights norms
• Reaffirms that human rights, and democracy are linked and are an important part of the core values and principles of the United Nations
• Its fundamental role protects rights and advances inclusiveness by ensuring civil and political rights and liberties are secure and equal
• An independent judiciary is imporant
• Ensures that the equality and dignity of all citizens are not at risk

Annual Rule of Law Report

• Examines developments across Member States, both positive and negative, in four key areas: the justice system, anti-corruption framework, media pluralism and freedom, and other institutional issues

Lord Bingham Statement

• Persons and authorities within the state should be bound by and entitled to the benefit of laws publicly and prospectively promulgated
• The Rule of Law is foundational, dictating that all members of society are subject to publicly disclosed legal codes and processes
• Stands in contrast to arbitrary governance
• Ensures no individual or institution is above the law, laws are applied consistently, fairly, and transparently
• Understood as a system where laws are created, modified, and enforced based on agreed-upon rules and procedures
• Requires that laws be clear, publicized, stable, and applied evenly
• Conduct legal processes fairly and impartially, safeguarding individual rights and freedoms while maintaining public order and justice

Aspects of Laws

• Must be accessible, comprehensible, clear, and predictable
• The principle of non-retroactivity prohibits ex post facto laws, requiring laws to be promulgated prospectively
• Empus regit actum -time governs the act.

Transition Provisions

• Serve as a bridge between old and new, managing the shift fairly while minimizing disruptions to achieve uncertainties
• Follow main transition protocols, and sanctioning provisions
• Follow general transition rules regarding preexisting conditions, phasing-in a new law, including savings clauses

Case Study: Ana and the New Environmental Protection Law

• Explores fair transition of the law applied to environmental regulations from a time where the new law completely bans the production of certain types of plastics
• How do provisions ensure fair transition from the old law to the new one?

Law and Discretion

• Legal rights and liabilities should be resolved by applying the law, not exercising discretion
• Judges' decisions must be reasoned, reasonable, and aligned with what has been requested

Equally Before The Law

• Laws should apply equally to all, except for objective differences
• Ministers and public officers must exercise their powers in good faith and for the intended purpose

Judicial Matters

• Court and Administrative Courts hear appeals and Dismissal disputes
• Resolution must be provided so civil parties can resolve their complaints themselves without prohibitive cost
• Adjudicative procedures provided must be fair, and judiciary independent
• Laws must afford adequate protection of fundamental human rights

International Legal Order

• The rule of law requires compliance by the state with international law as in national law