ULAW - Legal Positvism

Introduction to law

• What is law, generally? 

  • What distinguishes law from other similar things in the world? 

• What is law?

  • Usually, a collection of rules and regulations that are meant to govern a society and community 

  • Protection of personal rights 

  • Socially accepted answers

  • Standards and procedures 

  • Process 

Central Questions

• What is common to all that distinguishes law from other, similar things? 

• What is common to all legal systems that distinguish legal systems from the rest of society? 

  • Both of these questions are about all laws, across the world and around history 

  • What truly counts as a legal system across history? 

  • Law sets out procedures to protect the people and may contain sanctions to redirect behavior 

H.L.A Hart Legal Positivism 

• To have “law” and a “legal system” you need: 

  • Primary and secondary rules (“law is the union of the primary and secondary rules”)

  • A rule of recognition (setting criteria of legal validity for identifying binding laws)

  • The rule of recognition is a social rule that the system’s officials accept from the internal point of view 

• All of these points are made to answer “what is law?” 

• What statements can we make about the concepts of law

  • Is they are untrue, they say that there cannot be a society of law

    • What are the necessary and sufficient conditions of having a legal system 

    • What is the nature of law 

    • Unlike other questions (matter, time, evil) this question is the nature of a human activity; law is a practice; something we create and change 

  • Needs to be grounded in what humans do and say 

    • Important data 

  • General account of the nature of law per say 

  • General vs. Specific Jurisprudence 

  • Descriptive vs. Normative Account

    • Taking a phenomenon from what we find in the world 

    • Don't want to give a normative answer 

      • Normative account of law is observations about the world and here some arguments about why we should change the law 

      • Normative law is Giving reasons for changing something 

        • If we come in and provide an economic reason as to why marijuana should be legalized 

      • Different criteria and reasons for advocating for the law 

  • Legal Positivism vs. Natural Law 

    • A group of people committed to the idea that law is a human poset

      • Something that we create in the world through our activities of the world 

      • Logic and linguistic positivism 

    • Committed to the idea that there can be a purely descriptive answer to “what is law; what makes something a legal system” 

      • There is a conceptual distinction between “what is law” and “what should the law be?” 

        • Second, is a normative law 

    • Natural law 

      • Deny this very distinction 

      • You cannot answer the question “what is law” without addressing “what should the law be?” 

        • Because they think the law is at least in some important partial sense, created by a source beyond human manipulation 

          • By God 

  • Theory of Law vs. Theory of Adjudication 

    • Theory of adjudication is at least one way could characterize the contribution of the American realists 

      • American realists were interested in applying the scientific method into the study of law

      • Should look imperatively through the lens of science 

      • They found problems that judges were following rules and regulations to make their decisions 

        • They want judges to respond solely on the facts of the case rather than the law 

          • Factual features of the case; moral questions? 

      • Some wanted to make about the nature of law 

        • Would say “what is law” is mostly just politics 

  • “Ordinary language” methodology 

    • The idea that we can get important insights through careful examination of ordinary language 

    • Artifacts of human practices should be defined by human experiences 

• Key Phenomena 

1. Criteria of Legality - Criteria by which we say that some norms are legal norms and some are not 

   1. Valid laws and not valid laws 

   2. How the bill becomes a law process 

   3. If a rule of law is announced by any court, that is a legal norm as opposed to something else 

2. Law’s Normativity - the fact that legal norms give us reasons for acting that we would not otherwise have 

   1. Legal and moral norms 

   2. Gives you a reason to act 

      1. Normative theory of law; making giving them a reason to change 

   3. Is just the feature of the law that for the most part gives you a reason to do something 

   4. There is no obligation that laws have to be made 

      1. Unless we can stay with natural law theorists, we should be careful of thinking that law's normativity gives us reasons to act 

3. Hart contrasts Austin's point on the normativity law 

   1. Austin states that the law is just 100% prudence 

      1. I follow the law because I am scared of what would happen 

   2. Hart thinks that prudence cannot be the whole story of law's normativity 

      1. Prudence cannot explain why some people follow the law even though they know the law is immoral 

      2. It does explain why people do not follow the law even though they know that anything could happen 

• Positivism’s Central Theses 

  • Social Fact Thesis - Laws are identified as laws by reference to social facts about their source 

    • What counts in society falls in social fact 

    • Falls directly into that law is a human creation 

      • Created by humans and not by God 

      • Enduring moral truth 

      • Ought to be everything we know about it 

    • Social facts and what we know about the law 

      • Issued by the court? 

      • Came from Congress?

      • Is it a bad law? Economic efficiency law?

        • All whether to determine if it is a valid law 

  • Separation Thesis - What the law is and what should be are separate questions (or “there is no necessary connection between law and morality”)

    • Descriptive vs. Normative account 

    • Laws can only be validated by conducting a moral assessment of the law 

      • Jules Holman 

      • There is no necessary connection between law and morality 

• Hart is concerned with the ways that we talk about the law 

• The legal system could be morally bad 

J.L Austin 

• Problems with “Command Theory” 

  • Doesn’t account for power-conferring rules 

  • Doesn’t explain why some people feel obligated to follow the law 

• Hart is about what we say and what we do

  • Says that this command theory misses an important fact 

    • Power conferring rules 

    • Rules that vest the president to command the armed forces 

    • Hart is saying that it is not complete because it does not seem to explain power-conferring rules 

• The sovereign is obeyed and does not obey anyone else 

• Law commanded by the sovereign and could get sanctions from higher people 

  • Hart questioned how they fit Hart’s power-conferring rules 

  • Hart: this idea of issuing commands and threatening those who do not comply, it talks about the law’s normativity; the way in which law gives us a reason to act 

    • EX: people will obey the law because they do not want a sanction 

      • Hart says that when you do that you are obeying the law for reasons of prudence 

      • There are some people that talk about having an obligation to the law

      • Not captured by Austin’s theory of law 

    • Hart says that part of the phenomena that he is basing his theory on is how people talk about the law and how people act when they come in contact with the law 

  • Obliged is the language of prudence 

    • Obligation suggests something internal that seems different from these other reasons of following the law