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Legal Positivism
a philosophy of law that emphasizes the separation of law and morality, asserting the description of law should be objective and free from moral judgements.
separability thesis
the question of what law is is distinct from what the law ought to be
descriptive focus
legal positivism seeks an objective and morally neutral description of law
social facts
what the law is grounded in, such as conventions and the actions of legal officials
primary and secondary rules
a categorization of legal rules made by H.L.A. Hart
primary rules
the imposing of duties
secondary rules
governing the legal system itself
inclusive legal positivism
legal positivism which allows for the possibility of moral criteria to be incorporated into the criteria for legal validity
exclusive positivism
legal positivism which does not allow for moral considerations and rejects its incorporation into the criteria for legal validity
natural law theory
natural law theorists argue that there is a necessary connection between law and morality
legal realism
emphasizes the role of judicial discretion and the influence of non-legal factors in legal decision-making
legal pluralism
challenges the focus on the state of law, highlighting the existence of multiple legal systems within a society
traditional natural law theory
focuses on arguments for the existence of a `higher law´ its content and its implications for citizens when positive law conflicts with it.
Cicero’s formulation of natural law
natural law unchanging, everyone can figure it out using reason, and that only laws that are fair and just can truly be called ‘laws’
Thomas Aquinas beliefs on natural law
human laws should be based on natural law, according to natural law theory, if a human law goes against natural law, it is not really a law at all
rise of legal positivism
in the 19th century alongside the rise of urbanisation, modernisation and legal codification, going in conjunction with natural sciences, leading the law to emulate scientific objectivity
the paradox of legal positivism
while legal positivism claims to be separated from influence of personal values, legal certainty in itself is a value
inuista lex non est lex
an unjust law is no law at all
natural law and international law
natural law is a necessity to be able to believe in international law superseding individual legal regimes
Remota iustitia, quid sint regna nisi magna labrocinia?
without the aspiration of, what are kingdoms but great robberies - Augustine
modern natural law
the attempt to hold on to the universalism of natural law without underpinning it with religious or metaphysical beliefs
revival of natural law theory
the direct response to the atrocities of WWII to hold individuals accountable, which is only able if there is a belief that certain laws supersede individual regimes
Radbruch’s Formula
when a law is extremely unjust, it loses its legal validity and must be disregarded in favor of justice. It balances legal positivism with natural law, asserting that statutory law should generally be followed unless it contradicts fundamental principles of justice to an intolerable degree.
what led to the rise of legal positivism
law going in conjunction with the natural sciences, which led to law emulating the science’s objectivity after the rise of urbanisation and modernisation
civil disobedience
the refusal to comply with certain laws considered unjust
Martin Luther King
an example of the revival of natural law in the form of promoting civil disobedience
issue with natural law theory
who decides what is considered unjust, it is based in subjectivity
Customary rule
unwritten rules based on customs and principles
Ronald Dworkin
one of the most influential English-language legal theorists who developed an alternative to legal positivism which does not align with traditional natural law theories
constructive interpretation
the law is an ongoing narrative and must be based on past governmental actions (statutes, judicial rulings) while also making the law the best it can be
Key elements of constructive interpretations
1.) Pre-interpretive stage
2.) Interpretive stage
3.) Post- interpretive stage
pre-interpretive stage
identifying legal materials (statutes, cases, precedents)
interpretive stage
judges select the best moral and political justification for existing laws
post-interpretive stage
applying interpretation in a way that fits and justifies the law
right answer thesis
Dworkin’s most controversial claim that every legal case has a unique right answer, even in hard cases, where no clear rules apply, there is still a correct legal answer to be considered
criticism of the right answer thesis
legal reasoning is inherently subjective and judges often reach different conclusions
Article 1 of the Dutch Constitution
the prohibition of discrimination, and that all persons in the Netherlands shall be treated equally in equal circumstances
legal integrity
laws should be interpreted as a coherent whole, not as a collection of isolated rules, where judges should act as if the law was created by a single author with a coherent moral vision
criticisms of Dworkin’s theory
Too idealistic
focuses too much on judges
overstates legal certainty
mechanical adjudication
rule scepticism
the idea that rules only play a small role within the wider context of legal outcomes
legal determinacy
the extent to which the right legal outcomes are determined my legal rules
legal formalism
an approach to jurisprudence that emphasizes the discovery of legal principles through logical analysis.
victor’s justice
the excessive or unjustified punishment of defeated parties and the light punishment of or clemency for offenses which have been committed by victors.
