Week 5 slides(1).pdf

LEGAL POSITIVISM VAN BLERK “… POSITIVISTIC THEORIES OF LAW” LEGAL POSITIVISM: AUSTIN, HART AND KELSEN Austin – 19th century – follower of Bentham and proponent of utilitarianism Hart (English) and Kelsen – 20th century – moving away from Austin’s “unlimited sovereign” Legal positivism part of “analy...

LEGAL POSITIVISM VAN BLERK “… POSITIVISTIC THEORIES OF LAW” LEGAL POSITIVISM: AUSTIN, HART AND KELSEN Austin – 19th century – follower of Bentham and proponent of utilitarianism Hart (English) and Kelsen – 20th century – moving away from Austin’s “unlimited sovereign” Legal positivism part of “analytical jurisprudence” – studies and theorises law as analytic concept; isolate essences; distinguish from other systems of norms Main tenet of LP: the separation of law and morals Opposed to natural law thinking: “nonsense upon stilts” LEGAL POSITIVISM : BASICS LP = The existence, validity and content of law is determined by “social facts” (power) and not by its merits “The existence of law is one thing; its merit and demerit another. Whether it be or be not is one enquiry; whether it be conformable to an assumed standard, is a different enquiry” (JOHN AUSTIN) NB: Does not claim that the merits or morality of law is irrelevant, unimportant - only that they do not determine whether laws / legal systems exist Legal system depends upon the presence of specific political authorities and structures and laws depends upon what standards its officials recognise as authoritative (legislation, case law, ) LP - LAW IS “POSITED” (DECIDED, CREATED, ORDERED etc); A HUMAN SOCIAL CREATION JOHN AUSTIN: COMMAND / IMPERATIVE THEORY OF LAW The Province of Jurisprudence Determined Positive Law = the proper subject matter of jurisprudence “law, simply and strictly so-called: or law set by political superiors to political inferiors or by people acting in pursuance of legal rights conferred on them by political superiors” [29 / R71] Excludes other human laws not issued by sovereign and not supported by legal sanction = “laws not properly socalled” ONLY commands of the sovereign and his subordinates = the province of jurisprudence / law properly so-called AUSTIN’S COMMAND / IMPERATIVE THEORY OF LAW COMMAND Law = command of a “determinate superior” to the “bulk of society, which is in the habit of obedience, to do or abstain from doing some action and which is enforced by the threat of punishment” Command = (1) must be general and (2) commander must owe no obedience to others (illimitable sovereign) Prescribes non-optional conduct SANCTION = definitive component of commands ; essential to the existence of law Any resultant disadvantage stated by law (punishment, nullity, inconvenience, loss of advantage) AUSTIN’S COMMAND / IMPERATIVE THEORY OF LAW … / 2 SOVEREIGNTY (UNLIMITED) (1) bulk of society habitually obeys; (2) has no other superior [i.e. subject to no legal restriction] Cannot impose commands upon herself “Every supreme government is legally despotic” Excludes constitutional and international law from the category of positive law proper Sovereignty – pre-legal; creator not creature of law Can only violate positive morality Judge = delegate of sovereign Court decision – exercise of the sovereign’s power ASPECTS OF LEGAL POSITIVISM THROUGH AUSTIN Law not derived from reasoning about the nature or order of things; not derived from ontological / cosmological facts of human existence Rather: derived from key social facts: sovereign; obedience; sanction Analytic conception – not based on history or sociology; but conceptual analysis and delineation of key concepts: law, command, right, sovereign etc Legal validity derived from social convention – not nature or morality Morals not a necessary condition for legal validity – law and morality conceptually distinct HLA HART: A MATTER OF RULES The Concept of Law Develops his theory of legal positivism with reference to Austin’s command theory mainly by differentiation. Rejects Austin’s command / imperative theory of law as an unrealistic account of law. “There are therefore two minimum conditions necessary and sufficient for existence of a legal system. On the one hand those rules of behavior which are valid according to the system's ultimate criteria of validity must be generally obeyed, and, on the other hand, its rules of recognition specifying the criteria of legal validity and its rules of changes and adjudication must be effectively accepted as common public standards of official behavior by its officials The Concept of Law [p. 113] REJECTION OF AUSTIN’S COMMAND / IMPERATIVE THEORY OF LAW Theory of command is inadequate to capture the nature of law Not all laws all laws impose duties, but rather provide facilities for the realisation of individuals wishes. E.g. laws of succession and contract Notion of nullity – inadequate to qualify as a sanction The notion of the habit of obedience is inadequate What happens when there is a new sovereign to whom habit of obedience is yet to be formed? Austin’s notion of sovereignty deficient Hart questioned extent which conception of sovereign aligned with or accurately described reality Notion of unlimited sovereign, therefore a misrepresentation. Hart posits RULES as central to understanding true nature of a legal system RULES AND NOTION OF OBLIGATION CENTRAL TO HART’S CONCEPT OF LAW Differentiation between concept of obligation vs being obliged to perform an action is important to understand the concept of a rule. According to Hart, it is not always the case that where there is a rule there is an obligation. BUT wherever there is an obligation there is a rule! Two types of social rules Social conventions (impose no obligations in a real sense) and Primary rules which impose obligations and are legally enforceable for regulation of society Both have an external aspect (relates to the performance of an action) and internal aspect (view shared by members of society which guides conduct and elicits criticism / opprobrium when not conformed with) PRIMARY RULES NEED SECONDARY RULES PRIMARY RULES which govern conduct and are necessary for the maintenance of social life and order - all societies have primary rules. Not enough for purposes of establishing a sophisticated working legal system – more needed to move from pre-legal to legal society SECONDARY RULES are needed ascertain or determine what PRIMARY RULES are and exist to compliment primary rules. Rules of recognition - important for purposes of identifying what constitutes valid and binding law Rules of change – concerned with determining the procedure for the amendment/repeal of laws Rules of Adjudication – concerned with determining how legal disputes are to be resolved PRIMARY RULES NEED SECONDARY RULES Primary rules depend on secondary rules for the establishment of an effective working legal system. Acceptance of law by private citizens NOT enough Collective acceptance by officials is what is crucial, particularly the rule of recognition for consistency and certainty. “To sum up, it is only necessary that private citizens to obey, while officials must both obey and accept.” (Van Blerk R 138) ADJUDICATION AND NOTION OF THE PENUMBRA A strict or hard conception of legal positivism presupposes stability and clarity as to meaning of legal rules and their application with little room for discretion - this is not realistic when it comes to adjudication. Hart introduced the notion of the penumbra – the case where a judge may refer to substantive moral values beyond the law to reach/justify a decision (this is case where the rules have run out – where no valid legal rules exists – where there is uncertainty) It is this open space that Hart leaves for the penumbral cases that we could classify his theory as soft positivism (i.e the distinction between law and morality holds only until the rules run out and then, the judge has some discretion in legal interpretation) Is Hart’s positivism reconcilable with modern conception of democracy? Contrast this with Austin’s sovereign. HANS KELSEN A PURE THEORY OF LAW Author of Introductions to the Problems of Legal Theory; General Theory of Law and the State; The Pure Theory of Law; General Theory of Norms His theory concerns developing a legal science capable of describing positive law For him law (legality and illegality) can be described/conveyed without reference to morality, politics and sociology (this is what is meant by pure and this purity is the basic methodological starting point) Essentially, law and only law is relevant to answering the question of what is law? Why ‘pure’’? It is not the business of the science of law to approve or disapprove of its subjects LAW AS A DIRECTION TO OFFICIALS Kelsen’s theory rather than focusing on the nature of law as command and what gives rise to a duty to obey it on part of citizens, he focused on ‘conditions which permit the application of sanctions.” Kelsen sought to develop a framework of analysis that isolated the norms of positive law, and then define only the legal aspect of those norms without any ‘extraneous’ reference to morality, politics or social function. According to Kelsen law/legal norms should be seen as a direction to officials (judges, police, jailers etc) to take a particular action upon the occurrence of a particular event For Kelsen, legal norms are addressed to officials – directing them on what steps to take when something happens. A norm is valid (and thus effective) if (1) it is obeyed and (2) if it is disobeyed, a sanction is prescribed (in other words, effectiveness is a condition of validity of a legal norms) THE GRUNDNORM The basic norm (or the Grundnorm) “The Grundnnorm is the starting point of legal norms. It is at the apex of the hierarchy of legal norms and is the original source of authorisation for the decisions and actions taken throughout the system, down to its lowest level” (Van Blerk 1996: R 141) For Kelsen, law is a system of norms. For a legal norm to be valid, it must be part of the system. That is to say that the reason for the validity of a norm is always another norm. The validity of a norm is traced back to a historical-starting point for norm creation, beyond which the chain of validation cannot go. The last norm in this chain is the Grundnorm/the basic norms. (for example, bylaw A is valid because of statute B which is valid because of constitution C which is valid because of the historically first constitution D – in this chain, D is the Grundnorn; is the norm that grounds the entire legal order) THE GRUNDNORM This Grundnorm validates and authorises the creation of all legal rules. It presupposes the validity of the constitution (ie it is not the constitution). It should be clear then that the Grundnorm is a hypothetical construct (or in Kelsen’s words “a fiction”) Ultimately, “Kelsen’s Grundnorm has the purpose of uniting the legal system by tracing the validity of the entire hierarchy of norms to this single source, showing that the norms are all part of the same legal system and constitute its unity.” (Van Blerk – R 141) Compare Hart’s rule of recognition and Kelsen’s Grundnorm (or basic norm) – both used to establish legal validity - Hart works by criteria / Kelsen works from the historically first constitution