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Flashcards in Legal Positivism: General Deck (15):
1

Hart: 5 principle views of LPs

1) Laws are commands of human beings
2) No necessary connection between law and morals
3) Analysis of legal concepts is (i) worth pursuing; and (ii) distinct from sociological, historical and critical evaluation.
4) Legal system is a 'closed logical system' - correct decisions may be deduced from predetermined rules by logical means alone.
5) That moral judgements cannot be established, as statements of fact can by rational argument, evidence or proof.

2

Highest common factor of LPs

That the law as laid down should be kept separate, for the purpose of study and analysis, from law as it ought to morally be (first know how the engine works, then criticise and suggest alternatives).

Hart: Must in the end be submitted to moral scrutiny.

3

Criticisms of LP: Value-free account of law

LP emerged in C19, same time as capitalism, therefore represents a particular ideology - protection of the economic situation and the middle classes.

4

Criticisms of LP: 'Validity' cannot be neutral

Sovereignty, efficacy and iPOV fail to take into account the values that underpin legal validity and explain why it is valid.

5

Criticisms of LP: Authority and discretion

Hart Chess Rules (rejecting Grundnorm and gunman): they are not moral rules but define accepted rights/duties. The acceptance of rules from iPOV leads to a need for CAR rules which necessitate authority = no necessary connection thesis.

Where there is a gap in the rules, judges have strong discretion. Dworkin: enters a determination of what is law and repudiates the separation between law and morals.

6

Criticisms of LP: Rules, commands and norms do not fully explain reality

They only provide a formal scheme of operation of legal systems - but can we understand the relationship between judiciary and legislature without the idea of democracy? Do we therefore need democracy to explain law?

7

Criticisms of LP: A necessary connection between law and morality (Fuller)

Fuller: Eight desiderata form the 'internal morality' of law. If a system does not conform with any of these principles or fails substantially in respect of several, then law does not exist. (NB: Does not make clear how 8D are moral)

Law is a purposive enterprise dependent for its success on the energy, insight, intelligence and consciousness of those who conduct it.

Therefore, Nazi law was not law (contra Hart: laws may be law but too evil to be obeyed). However, no guarantee of just order e.g. South Africa apartheid - although Fuller says this defined race arbitrarily and therefore was a gross departure.

8

Fuller's 8 Desiderata

Generality
Promulgation
Non-retroactivity
Clarity
Non-Contradiction
Possibility of Compliance
Constancy
Congruence between declared rule and official action

9

Detmold on CL

Suffers from a lack of separating analysis of sociological statements, where existence can be separated from bindingness (therefore from morality), and analysis of iPOV, where it cannot.

10

Raz's 3 Theses

1) Social Thesis: law may be identified as a social fact without reference to moral considerations
2) Moral Thesis: the moral merits of the law is neither absolute nor inherent, but contingent on the content of the law and the circumstances of the society to which it applies.
3) Semantic Thesis: that normative terms of 'right' and 'duty' are not used in the same way between moral and legal contexts

11

Raz's acceptance of the Social Thesis

Three accepted criteria by which a legal system can be identified: efficacy, institutional character (relationship of law to legislature) and sources - moral considerations are excluded from all three.

For Raz, essence of positivism is the Sources Thesis - accounts for a fundamental function of law, namely, setting of standards by which we are bound in such a way that we cannot excuse non-compliance by questioning the rationale for the standard.

12

Raz's on General Moral Obligation to Obey

Rejects the following:
(1) It is claimed that to distinguish between law and other social functions is to neglect the functions of the law, functions of the law cannot be described value free and therefore a functional account includes moral judgements. Raz: his analysis of functions is value free
(2) It is claimed that you cannot determine content of law exclusive by social facts. Raz: acknowledges moral concerns enter adjudication in determining what the law is, but that this does not establish a case against the source thesis.
(3) It is claimed the law must conform to RoL, this demonstrates it is moral. Raz: RoL does not confer independent moral merit, it reduces the risk of abuse of executive power - a negative virtue for risk created by the law itself.

13

NL (Finnis) /LP (Raz): 4 Common Grounds

(1) Finnis acknowledges his approach is informed by analytical jurisprudence
(2) They both seek to examine and justify the authority of law
(3) They both believe no pf moral obligation to obey an unjust law.
(4) They accept the importance of RoL

14

NL (Finnis) /LP (Raz): 4 Differences

(1) LP contend no necessary connection, NL rejects this
(2) LP descriptive/analytical, NL evaluating law/society
(3) This leads to different views concerning practical reason and moral POV as an aspect of practical reason (with practical consequences)

15

Criticisms of LP

Value-free account of law
'Validity' cannot be neutral
Authority and discretion
Rules, commands and norms do not fully explain reality
A necessary connection between law and morality