Natural Law Syllabus (2023-2024) PDF

Synthèse du syllabus de Natural law | 2023-2024 | Sarah Lefrarni Although Kant's distinction between law and morality lays the groundwork for legal positivism, he does not fully embrace it. Kant rejects defining law solely based on positive law...

Synthèse du syllabus de Natural law | 2023-2024 | Sarah Lefrarni Although Kant's distinction between law and morality lays the groundwork for legal positivism, he does not fully embrace it. Kant rejects defining law solely based on positive laws of a specific time and place, recognizing a normative core inherent to law. This core is tied to the purpose of law, which is to uphold human dignity and ensure the harmonious coexistence of free individuals. 2. On natural law and society See text pg 138-139 In this excerpt, Kant distinguishes between natural law, rooted in a priori rational principles, and positive law, which originates from the will of the legislator. He emphasizes that positive law should be associated with civil law, while natural law remains akin to private law in the absence of public authority validation. Although modern terminology differentiates between private and public law within positive law, Kant's terminology differs. For Kant, the innate natural right of individuals is the freedom to act in accordance with others' freedom under a general law. o In the state of nature, individuals possess rights to property and self-defense, but these rights lack definitive legal guarantee until entering civil society. o Kant posits a principle of private law that obliges individuals to transition from the state of nature to civil society, ensuring distributive justice and legal protection for property. Kant's conception of natural law as provisional underscores its role as a precursor to positive law and civil society, rather than condemning it outright. He views natural law as incomplete, requiring supplementation by positive law to achieve justice and legal certainty. In another text, "Perpetual Peace," Kant extends this idea to international relations, advocating for a federation of republics to establish common laws and resolve conflicts peacefully. He even suggests a natural right of asylum, allowing individuals to seek protection from states outside their nationality. 3. On the social contract and the sovereign See text pg 140-141 Kant's political theory aligns with contractualist ideas, particularly those of Hobbes and Rousseau, regarding the formation of a sovereign state through an original social contract. In Kant's view, individuals both constitute the sovereign and are subject to the state, leading to a form of self-obedience when adhering to laws. However, this autonomy does not grant individuals the right to disobey laws, as only the state possesses coercive power.  Unlike Hobbes, Kant allows for criticism of the sovereign, acknowledging the possibility of state injustice resulting from ignorance or error. o He asserts that citizens should be authorized to bring attention to such injustices, primarily through freedom of expression, particularly through the written press. o However, Kant maintains that there is no legal right of resistance against the sovereign, rejecting the idea of natural law-based disobedience, contrary to Locke's position. Although Kant acknowledges the existence of natural law and sees positive law as perfectible in aligning with natural law's principles, he offers an unsatisfactory solution regarding challenging state decisions. His rejection of a right of resistance signifies a shift towards legal positivism, which will be explored further in subsequent chapters. Chapter 3. Legal Positivism The current of legal positivism is too important to be summarised in a few lines. We will limit ourselves to mentioning three major names (in addition to the roots of the movement, already mentioned): John Austin, who delivered the first theory of legal positivism, Hans Kelsen and Herbert Hart, who are, at least for continental lawyers, the two best- known figures of the 20th century. Page 48 sur 73  Synthèse du syllabus de Natural law | 2023-2024 | Sarah Lefrarni §John A. Austin (1790-1859) About him: John Austin, born in 1790, was an English legal theorist who studied at Cambridge and became familiar with Bentham's utilitarian thought. He began practicing at the bar in 1818 but left in 1825. In 1826, he became the first professor of legal theory at the University of London, although his courses were not well attended, leading to his resignation in 1835. Similar to Bentham, Austin criticized Blackstone's declaratory theory of law, which denied the judge's creative power and relied on retroactive judgments. He favored statutory law for its certainty, contrasting it with judge-made law, which he saw as causing uncertainty due to inconsistent interpretations. Austin believed that well-constructed laws, approved by the majority, provided certainty until they were revoked, unlike obscure or unloved laws and case law, which were uncertain. In 1832, Austin published his lectures as "The Province of Jurisprudence Determined," which became influential in English legal theory until the 20th century. H.L.A. Hart noted Austin's significant influence on the development of English legal theory, surpassing that of any other writer. 1. The different types of laws See text pg 143 - 144 John Austin categorizes laws into four types: divine laws, positive laws, positive morality, and metaphorical or figurative laws. He distinguishes literal laws, which are commandments, from other types of laws. o Divine laws are established by God for humans, while positive laws are established by humans for humans. Positive laws are commands formulated in general form and enacted by political superiors for political inferiors. ▪ The sovereign, according to Austin, is the supreme political superior who is generally obeyed by the bulk of society without having to obey a higher authority. o Positive morality includes literal laws (commandments) and laws that are not literal but are called laws by analogy. These may resemble laws in the proper sense but lack clear authorization and intent to inflict sanctions. o Metaphorical or figurative laws, such as biological or physical laws, govern the non-rational world and do not target rational beings capable of will or impose duties or sanctions. Austin's categorization leads to conclusions such as international law being considered a branch of positive morality rather than positive law in the absence of sovereign authority. Customary laws are not considered positive law until they receive legal sanction from the sovereign. Regarding natural law, Austin finds the term ambiguous and misleading. He suggests that it often refers to divine law but can also include laws modeled on divine laws observed universally across time and place. However, he admits these distinctions are complex and considers divine law as the only natural law that can be spoken of without metaphor or confusion. 2. The matter of “Jurisprudence” (legal science) See text pg 145-146. Austin's legal positivism asserts that legal science should focus exclusively on positive law, excluding any moral dimension. Natural law, equated with divine law, and "positive morality" (man-made morality) are deemed irrelevant to legal scholars. This scientific approach to law gained traction among English jurists, particularly in legal education. According to Austin, the study of law concerns what the law is, not what it ought to be, which is the realm of ethics or deontology. He distinguishes between law as it is and law as it ought to be, rejecting the idea that human laws must conform to divine laws for validity. Page 49 sur 73  Synthèse du syllabus de Natural law | 2023-2024 | Sarah Lefrarni While Austin acknowledges the significance of divine laws, he considers the notion that positive laws contrary to divine laws are invalid as absurd. He argues that divine laws are not always clear, leading to arbitrariness in interpretation, and enforcing such a principle would result in anarchy. Austin criticizes Grotius and subsequent thinkers for conflating international law accepted by civilized nations with their conception of "international morality as it ought to be," or the ambiguous notion of the "law of nature." He also critiques Roman jurists for blurring the lines between positive law and positive morality. Austin rejects the idea that law inherently derives from justice, arguing that justice is always evaluated in relation to a given law. This position aligns with Hobbes' nominalist view on justice and injustice. §2. Hans Kelsen (1881-1973) Hans Kelsen, born in 1881 in Prague, was a prominent legal theorist who made significant contributions to jurisprudence. He studied law in Vienna and later became a professor of public and administrative law. Kelsen played a crucial role in drafting the Austrian Constitution of 1920 and establishing a court to ensure its constitutionality. In 1933, due to his Jewish background, Kelsen lost his teaching position in Germany when the National Socialist Party rose to power. He then taught international law in Geneva until 1940, publishing his influential work "Pure Theory of Law" in 1934. Following the Anschluss, Kelsen fled Europe and settled in the United States, where he became a professor at the University of Berkeley. He became an American citizen and passed away in 1973 in California. Kelsen's legal theory aimed to be value-neutral, focusing solely on describing positive law as it exists, rather than prescribing how it should be. He believed that justice is only found within the positive law of states and communities. His central thesis asserts the identity between law and the state, arguing that there is only state law, and consequently, only a legal state. 1.The Pure Theory of Law “A legal norm is not valid because it has a certain content, that is, because its content is logically deducible from a presupposed basic norm, but because it is created in a certain way-ultimately in a way determined by a presupposed basic norm. For this reason alone does the legal norm belong to the legal order whose norms are created according to this a basic norm. Therefore any kind of content might be law. (…) Precisely this anti-ideological tendency shows that the Pure Theory of Law is a true science of law”. (H. KELSEN, Pure Theory of Law) Kelsen's legal theory revolves around the concept of the legal order, which he describes as a hierarchical structure composed of multiple layers of legal norms. These norms regulate human behavior and are the result of acts of will, prescribing, permitting, or enabling certain conduct. A norm exists in the realm of duty (Sollen), distinct from the act of will itself, and becomes binding when its subjective meaning aligns with an objective expectation of conduct by disinterested third parties. This transformation into a binding norm occurs when empowered by a higher norm, extending all the way up to the Constitution, which derives its validity from a fundamental norm. As a proponent of legal positivism, Kelsen argues that a positive legal order is any system of constraints established by human acts and effective in a general manner, regardless of its specific content. His "pure theory of law" is anti- ideological, aiming to describe positive law as it is, not as it ought to be. This approach prevents positive law from being overvalued or devalued based on idealistic or moral considerations, instead focusing on understanding the actual legal framework and its possibilities. Page 50 sur 73  Synthèse du syllabus de Natural law | 2023-2024 | Sarah Lefrarni 2.Grundnorm and natural law See text pg 149 Kelsen's theory of the Grundnorm has been criticized for resembling jusnaturalism, as it posits a fundamental norm outside of positive law to ground its validity. However, Kelsen argues that while there may be some similarity, the Grundnorm serves a purely theoretical function in the interpretation of positive law, devoid of any ethical or political significance. In contrast, natural law theories aim to provide an ethical and political standard against which positive law can be judged. o The problem, according to Kelsen, is that these theories often fail to provide a coherent and universally applicable standard. o They are characterized by divergent and conflicting views on what constitutes natural law and its norms. For example, interpretations of natural law can vary widely on issues such as individual versus collective property rights or the preferred form of government. Kelsen concludes that natural law theories lack the firm criterion needed to justify positive law consistently. The history of natural law demonstrates the inability to provide a unified standard, leading to conflicting interpretations and undermining its efficacy as a basis for evaluating positive law. Beyond these differences, natural law theories face a more fundamental objection: See text pg 150 Kelsen critiques natural law doctrines for positing that the validity of positive law is based on an order established by nature, which is considered a supreme authority above human legislators. He argues that while natural law proponents claim nature commands certain behavior, this factual assertion cannot directly establish the validity of a norm. Instead, it implies the existence of a norm obliging obedience to nature's commands. However, Kelsen contends that such a norm is not evident because, from a scientific standpoint, nature operates according to causal laws without any inherent will to prescribe norms. The only conceivable extra-human that will establish such norms would be a divine will, but this is a metaphysical claim that lies beyond the scope of scientific inquiry, including legal science. Kelsen attributes certain assumptions to natural law doctrines that may not be universally held among proponents of natural law. His critique is based on a conception of nature as devoid of inherent normativity, a viewpoint aligned with modern scientific understanding but potentially incongruous with classical Greek thought. The criticisms of natural law by legal positivism, as outlined by Kelsen, will be further explored in Part III of the course. §3. Herbert L.A. Hart (1907-1992) Herbert Lionel Adolphus Hart, born in 1907 in England, made significant contributions to legal theory. Initially a barrister and later a professor of philosophy of law at Oxford, Hart intervened in debates surrounding criminalization of homosexuality post-World War II. Influenced by John Stuart Mill's principle of limiting individual liberty only to prevent harm to others, he advocated against state intervention in private matters, contributing to the decriminalization of homosexuality in England and Wales. In his seminal work "The Concept of Law," published in 1961, Hart expanded upon legal positivism, proposing a distinction between primary rules that impose obligations and secondary rules that modify or identify primary rules. He introduced the concept of "recognition rules," which identify valid primary rules based on certain criteria like authority, custom, or judicial decisions. Hart argued that the absence of such secondary rules in basic social structures leads to uncertainty and ineffectiveness. Page 51 sur 73  Synthèse du syllabus de Natural law | 2023-2024 | Sarah Lefrarni Hart's ideas sparked debates with legal scholars such as Lon Fuller and Ronald Dworkin. Fuller criticized Hart's positivist approach, contending that it neglected the moral dimension of law. Their exchange spanned a decade, with Fuller emphasizing the importance of law's internal morality. Ronald Dworkin, in turn, challenged Hart's rule of recognition, arguing that it failed to account for legal principles, which provide guidance but do not dictate specific outcomes like rules do. Dworkin rejected the idea of judicial discretion in "hard cases," proposing instead that there is always one correct legal answer. He presented a model of law as integrity, where judges seek the best interpretation of legal principles to maintain coherence and justice within the legal system. These debates between Hart, Fuller, and Dworkin highlight fundamental questions about the nature of law, its relationship with morality, and the role of judges in legal interpretation. 1. Law and morality See text pg 153 Herbert Lionel Adolphus Hart, aligned with legal positivism like Kelsen, posits that legal rules are not inherently moral but may coincidentally align with moral principles. o He acknowledges the historical influence of morality on law but asserts that legality does not necessitate moral conformity. o Hart distinguishes morality from law and other social norms by highlighting the importance, immutability, voluntariness, and specific sanctions associated with moral rules. Hart identifies a core truth within natural law doctrines, acknowledging certain fundamental principles essential for understanding law and morality. o He suggests that many natural law theories are rooted in the implicit assumption that human action's proper end is survival, reflecting the universal desire for continued existence. While some natural law theorists, like Aristotle and Aquinas, expand on this notion, others, like Hobbes and Hume, focus on the basic instinct for self-preservation as the foundation of natural law. Hart contends that the desire for survival forms the empirical basis for natural law concepts, providing a minimum content of natural rights. o This premise, he argues, is evident in human thinking and language, reflecting a fundamental aspect of human nature. Hart's analysis aims to strip natural law principles of their metaphysical origins and reframe them in simpler, empirically grounded terms. 2.A minimum content of natural law See text pg 154 Hart outlines several fundamental aspects of human nature and societal organization that shape the content of legal and moral rules. 1. Firstly, he emphasizes human vulnerability, which necessitates rules against bodily harm to others. ▪ This vulnerability underscores the need for mutual protection and cooperation in society. 2. Secondly, Hart highlights the rough equality among humans, as observed in Hobbes' state of nature. ▪ While individuals may differ in abilities, no one is significantly superior to dominate others permanently. This equality requires reciprocal abstentions and compromises, forming the basis of legal and moral obligations. 3. Thirdly, Hart acknowledges humans' limited altruism, as noted by Hume. ▪ While not inherently malicious, humans are also not entirely benevolent, necessitating rules to regulate behavior and prevent exploitation. 4. Fourthly, Hart addresses the limited resources in the world, which necessitate rules regarding property ownership and exchange. Page 52 sur 73  Synthèse du syllabus de Natural law | 2023-2024 | Sarah Lefrarni ▪ This includes recognition of promises as binding obligations, facilitating cooperation and economic activity. 5. Finally, Hart discusses human limitations in intelligence and willpower. ▪ While the benefits of social rules are evident, not all individuals possess the capacity to fully understand or adhere to them. Thus, sanctions are necessary to ensure compliance and prevent exploitation by those unwilling to follow societal norms. By presenting these truisms, Hart argues against sterile dichotomies and emphasizes the practical necessity of legal and moral rules grounded in human nature and societal needs. This minimum content of natural law reflects a core of common sense rather than transcendent norms, aligning with Hume's empirically grounded perspective. 3. Natural law v. Legal positivism Hart then asks whether there is any advantage in retaining a broad concept of law that includes immoral norms or a narrow concept that, like the jusnaturalist theses, excludes them. In other words, he asks, what is the advantage of considering that unjust rules are not law, rather than possibly defending the idea that they should be disobeyed? He addresses this question in particular in relation to the case of the 'rancorous informers' who were prosecuted in post- war Germany, referring to the case that prompted Fuller's reaction and the writing of the text in the interlude that joins Parts One and Two of the syllabus. It is clear to Hart that the narrow concept is of no interest to the theoretical or scientific study of law because it amounts to abandoning the study of these unjust rules to other disciplines. If one dwells on the practical merits of either concept, it seems to him that it is best, in the case of abuse of power by an authority, that people remain aware that the assurance of legal validity is not decisive in the problem of obedience. Finally, there is a more compelling reason for a broad conception of the law: "A concept of law which admits that the invalidity of law must be distinguished from its immorality allows us to see the complexity and diversity of these separate issues; a narrow concept of law, which denies legal validity to iniquitous rules, may instead blind us to them (...) It can at least be said in favour of the simple positivist doctrine that morally iniquitous rules may nevertheless constitute law, that it does not obscure the choice between evils which, in borderline circumstances, may be necessary”. In addition to the danger of anarchy, already pointed out by Bentham, which would result from the discarding of all rules deemed immoral and therefore invalid, Hart argues that the jusnaturalistic approach entails a risk of oversimplification. Returning to the case of the rancorous informers, Hart argues that a narrow concept of law blinds us to the complexities of the questions that arose in German courts after the war, namely whether to punish those who acted (morally) wrongly on the basis of the immoral rules then in force. This raises problems of morality and justice that must be analysed independently of each other, which cannot be the case if immoral rules are automatically denied validity. On the contrary, by adopting a concept of law that makes it possible to distinguish the validity of the law from its morality, it can be considered that the informers with a grudge have acted badly from a moral point of view, but that, on pain of violating the principle of legality in criminal matters (nulla poena sine lege), only those who, by acting badly, have also violated the rules applicable at the time, should be punished. If it is considered that, in order to prevent a greater harm than the sacrifice of this principle, it is necessary to derogate from it, the issues at stake must be clearly identified. Retroactive punishment, in Hart's view, should not take on the appearance of ordinary punishment for an act that was unlawful at the time of its commission. The merit of the positivist doctrine, he concludes, is therefore to highlight the choices that must be made in such a dilemma. At the end of this brief overview, it is easy to see that natural law theories have had difficulty surviving the attacks to which they have been subjected. The third and final part will take up these criticisms in a more systematic way, trying to see what, if any, rejoinders can be suggested and briefly taking stock of contemporary theories and questions of natural law. Page 53 sur 73