What is positive law?

8/10/2019 What is positive law?

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What is positive law?

The Command Theory (Bentham,

Austin)

The Social Convention Theory(Kelsen, Hart)


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Benthams Definition

as assemblage of signs declarative of avolition conceived or adopted by thesovereignin a state, concerning the

conduct to be observed in a certain caseby a certain person or class of persons,who in the case in question are or aresupposed to be subject to his power: suchvolition trusting for its accomplishment to

the expectation of certain events which itis intended such declaration should uponoccasion be a means of bringing to pass,and the prospect of which it is intendedshould act as a motive upon those whose

conduct is in question.


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Austins Definition

Legal Positivism: The existence of law is

one thing; its merit or demerit is another.

Whether it be or be not is one enquiry;whether it be or be not conformable to an

assumed standard, is a different enquiry.

A law, which actually exists, is a law,

though we happen to dislike it, or thoughit vary from the text, by which we regulate

our approbation and disapprobation.


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Bentham/Austin

Command Theory X is the superior of Y if and only if Y

is in the habit of obeying X, and not

vice versa.


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The Sovereign

A collection S of human beings

constitutes an independent political

societyjust in case there is onemember X (or some compact body X of

members) of S that is the superior of all

of the other members of S, and there isno human being Y outside of S who is

the superior of X. In such a case, X is

called the sovereignof society S.


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Commands

A commandfrom X to Y is the

expression, in words or actions, of

the desire of X that Y act in a certainway, backed up by a stated or

implied threat to impose some

penalty on Y if Y does not comply.


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General Commands

A general command is a command

that is issued to an entire class of

individuals and that is intended tostand for an indefinite period, until

revoked by its issuer.


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Positive Law

A positive law is a general

command issued by the sovereign of

an independent political society tosome or all the members of that

society.


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More problems

H. L. A. Hart argues that the command

theory cannot distinguish between a

legitimate government and an armedrobber ("give me your money or else").

The "Gun Man" objection.

Parliamentary or constitutional law, laws

governing the actions of the sovereign, donot count as law at all.


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More problems

The command theory fails to capture thenormative aspect of law: Austin's theoryis not a theory of the Rule of Law: ofgovernment subject to law. It is a theoryof the rule of men: of government usinglaw as an instrument of power. Such aview may be considered realistic or

merely cynical. Some laws do not seem to command:

e.g., those covering contracts and wills


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Conventionalist Versions of

Legal Positivism

H. L. A. Hart

(Oxford)

Hans Kelsen(Vienna, UCLA)


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Legal Validity

A law is valid or binding if it belongsto a system of laws that is in force in

a particular society. The validity of a system depends on

the validity of its most fundamentalsecondary rules:

Grundnorm (Kelsen)

Ultimate rules of recognition (Hart)


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Some Philosophical

Problems Reduces law to Sociology?

Is there a vicious circularity in

definition of validity?

What sort of thing is a rule? What is

it to follow or accept a rule?


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Does Law Reduce to

Sociology? The validity of a system of laws

seems, on their account, to be a

matter of sociological fact: whichsystem (which Grundnorms) to most

people treat as valid?

This threatens to collapse theirdistinction between the disciplines of

law and sociology.


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A Circular Definition?

Validityis defined in terms of what

most people believe to be valid.

If we don't already understand whatlegal validity means, we can't

understand their definition.


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A Circular Definition?

A law is valid if it is part of a validsystem of laws.

A system of laws is valid if it rests ona valid Grundnorm.

A Grundnorm is valid if peoplebelieve it to be valid.

The majority can never be wrongabout the validity of laws?


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What are Rules

(Conventions)? It can't be a mere pattern of behavior,

since that leaves no room for the

possibility of someone deviating fromthe norm or breakingthe rule.

It can't be a mere linguistic entity, like a

sentence or statement, since these must

be interpreted(by a linguistic orsemantic rule).


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What are Rules

(Conventions)? Legal positivism seems to have trouble

accounting for the normative force of law.

Why should habits of obedience orsociological facts about belief bind

someone to act?

Alternatives: theories that make a place

for normative aspects of law.


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Two Alternatives to Legal

Positivism Legal Realism (Oliver

Wendell Holmes, Jr.,Benjamin Cardozo, JeromeFrank): law isindeterminate, aninstrument to social good

Natural Law Theory(Aristotle, Aquinas, Fuller):law reflects a normativereality to be discovered

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What is positive law?