Legal positivism - Wikipedia
observation on Raz's ambiguous relationship to consequentialism. Much . Raz's ultimate interest is in political authority, the authority of law. . Raz, Promises and Obligations, in LAW, MORALITY AND SOCIETY: ESSAYS IN HONOUR. Legal positivism is a school of thought of analytical jurisprudence largely developed by legal laws are commands of human beings; there is no necessary connection but if it was added to the system by a legitimate authority , it is still a law. As for the moral validity of law, both positivists and realists maintain that this is a. of this Essay was presented to the Columbia Legal Theory Workshop on November 21, () [hereinafter J. RAZ, AUTHORITY] (arguing that, despite moral and practical .. tion-the nature of the relationship between law and morality.
References and Further Reading 1. Two Kinds of Natural Law Theory At the outset, it is important to distinguish two kinds of theory that go by the name of natural law.
The first is a theory of morality that is roughly characterized by the following theses. First, moral propositions have what is sometimes called objective standing in the sense that such propositions are the bearers of objective truth-value; that is, moral propositions can be objectively true or false. Though moral objectivism is sometimes equated with moral realism see, e. Geoffrey Sayre-McCordfor example, views moral objectivism as one species of moral realism, but not the only form; on Sayre-McCord's view, moral subjectivism and moral intersubjectivism are also forms of moral realism.
Strictly speaking, then, natural law moral theory is committed only to the objectivity of moral norms. The second thesis constituting the core of natural law moral theory is the claim that standards of morality are in some sense derived from, or entailed by, the nature of the world and the nature of human beings. Thomas Aquinas, for example, identifies the rational nature of human beings as that which defines moral law: On this common view, since human beings are by nature rational beings, it is morally appropriate that they should behave in a way that conforms to their rational nature.
Thus, Aquinas derives the moral law from the nature of human beings thus, "natural law". But there is another kind of natural law theory having to do with the relationship of morality to law. According to natural law theory of law, there is no clean division between the notion of law and the notion of morality. Though there are different versions of natural law theory, all subscribe to the thesis that there are at least some laws that depend for their "authority" not on some pre-existing human convention, but on the logical relationship in which they stand to moral standards.
Otherwise put, some norms are authoritative in virtue of their moral content, even when there is no convention that makes moral merit a criterion of legal validity. The idea that the concepts of law and morality intersect in some way is called the Overlap Thesis. As an empirical matter, many natural law moral theorists are also natural law legal theorists, but the two theories, strictly speaking, are logically independent.
One can deny natural law theory of law but hold a natural law theory of morality. John Austin, the most influential of the early legal positivists, for example, denied the Overlap Thesis but held something that resembles a natural law ethical theory.
Indeed, Austin explicitly endorsed the view that it is not necessarily true that the legal validity of a norm depends on whether its content conforms to morality. But while Austin thus denied the Overlap Thesis, he accepted an objectivist moral theory; indeed, Austin inherited his utilitarianism almost wholesale from J.
Mill and Jeremy Bentham. Here it is worth noting that utilitarians sometimes seem to suggest that they derive their utilitarianism from certain facts about human nature; as Bentham once wrote, "nature has placed mankind under the governance of two sovereign masters, pain and pleasure.
It is for them alone to point out what we ought to do, as well as to determine what we shall do. On the one hand the standard of right and wrong, on the other the chain of causes and effects, are fastened to their throne" Bentham1.
Thus, a commitment to natural law theory of morality is consistent with the denial of natural law theory of law. Conversely, one could, though this would be unusual, accept a natural law theory of law without holding a natural law theory of morality.
One could, for example, hold that the conceptual point of law is, in part, to reproduce the demands of morality, but also hold a form of ethical subjectivism or relativism. On this peculiar view, the conceptual point of law would be to enforce those standards that are morally valid in virtue of cultural consensus. For this reason, natural law theory of law is logically independent of natural law theory of morality.
The remainder of this essay will be exclusively concerned with natural law theories of law. The Project of Conceptual Jurisprudence The principal objective of conceptual or analytic jurisprudence has traditionally been to provide an account of what distinguishes law as a system of norms from other systems of norms, such as ethical norms. As John Austin describes the project, conceptual jurisprudence seeks "the essence or nature which is common to all laws that are properly so called" Austin Accordingly, the task of conceptual jurisprudence is to provide a set of necessary and sufficient conditions for the existence of law that distinguishes law from non-law in every possible world.
While this task is usually interpreted as an attempt to analyze the concepts of law and legal system, there is some confusion as to both the value and character of conceptual analysis in philosophy of law. As Brian Leiter points out, philosophy of law is one of the few philosophical disciplines that takes conceptual analysis as its principal concern; most other areas in philosophy have taken a naturalistic turn, incorporating the tools and methods of the sciences.
To clarify the role of conceptual analysis in law, Brian Bix distinguishes a number of different purposes that can be served by conceptual claims: Bix takes conceptual analysis in law to be primarily concerned with 3 and 4.
In any event, conceptual analysis of law remains an important, if controversial, project in contemporary legal theory. Conceptual theories of law have traditionally been characterized in terms of their posture towards the Overlap Thesis.
Thus, conceptual theories of law have traditionally been divided into two main categories: Classical Natural Law Theory All forms of natural law theory subscribe to the Overlap Thesis, which asserts that there is some kind of non-conventional relation between law and morality. According to this view, then, the notion of law cannot be fully articulated without some reference to moral notions. Though the Overlap Thesis may seem unambiguous, there are a number of different ways in which it can be interpreted.
The strongest construction of the Overlap Thesis forms the foundation for the classical naturalism of Aquinas and Blackstone.
Aquinas distinguishes four kinds of law: Eternal law is comprised of those laws that govern the nature of an eternal universe; as Susan Dimock22 puts it, one can "think of eternal law as comprising all those scientific physical, chemical, biological, psychological, etc.
One cannot discover divine law by natural reason alone; the precepts of divine law are disclosed only through divine revelation. The natural law is comprised of those precepts of the eternal law that govern the behavior of beings possessing reason and free will. The first precept of the natural law, according to Aquinas, is the somewhat vacuous imperative to do good and avoid evil.
Here it is worth noting that Aquinas holds a natural law theory of morality: Good and evil are thus both objective and universal. But Aquinas is also a natural law legal theorist. On his view, a human law that is, that which is promulgated by human beings is valid only insofar as its content conforms to the content of the natural law; as Aquinas puts the point: To paraphrase Augustine's famous remark, an unjust law is really no law at all.
The idea that a norm that does not conform to the natural law cannot be legally valid is the defining thesis of conceptual naturalism. As William Blackstone describes the thesis, "This law of nature, being co-eval with mankind and dictated by God himself, is of course superior in obligation to any other.
It is binding over all the globe, in all countries, and at all times: In this passage, Blackstone articulates the two claims that constitute the theoretical core of conceptual naturalism: It should be noted that classical naturalism is consistent with allowing a substantial role to human beings in the manufacture of law. While the classical naturalist seems committed to the claim that the law necessarily incorporates all moral principles, this claim does not imply that the law is exhausted by the set of moral principles.
There will still be coordination problems e. Thus, the classical naturalist does not deny that human beings have considerable discretion in creating natural law. Rather she claims only that such discretion is necessarily limited by moral norms: Critics of conceptual naturalism have raised a number of objections to this view. First, it has often been pointed out that, contra Augustine, unjust laws are all-too- frequently enforced against persons.
As Austin petulantly put the point: Now, to say that human laws which conflict with the Divine law are not binding, that is to say, are not laws, is to talk stark nonsense. The most pernicious laws, and therefore those which are most opposed to the will of God, have been and are continually enforced as laws by judicial tribunals.
Suppose an act innocuous, or positively beneficial, be prohibited by the sovereign under the penalty of death; if I commit this act, I shall be tried and condemned, and if I object to the sentence, that it is contrary to the law of God, who has commanded that human lawgivers shall not prohibit acts which have no evil consequences, the Court of Justice will demonstrate the inconclusiveness of my reasoning by hanging me up, in pursuance of the law of which I have impugned the validity Austin Of course, as Brian Bix points out, the argument does little work for Austin because it is always possible for a court to enforce a law against a person that does not satisfy Austin's own theory of legal validity.
Another frequently expressed worry is that conceptual naturalism undermines the possibility of moral criticism of the law; inasmuch as conformity with natural law is a necessary condition for legal validity, all valid law is, by definition, morally just.
Thus, on this line of reasoning, the legal validity of a norm necessarily entails its moral justice. As Jules Coleman and Jeffrey Murphy18 put the point: The important things [conceptual naturalism] supposedly allows us to do e. If we really want to think about the law from the moral point of view, it may obscure the task if we see law and morality as essentially linked in some way. Moral criticism and reform of law may be aided by an initial moral skepticism about the law.
There are a couple of problems with this line of objection.
The Authority of Law: Essays on Law and Morality - Joseph Raz - Google Книги
First, conceptual naturalism does not foreclose criticism of those norms that are being enforced by a society as law. Insofar as it can plausibly be claimed that the content of a norm being enforced by society as law does not conform to the natural law, this is a legitimate ground of moral criticism: Thus, the state commits wrong by enforcing that norm against private citizens. Conceptual jurisprudence assumes the existence of a core of social practices constituting law that requires a conceptual explanation.
The project motivating conceptual jurisprudence, then, is to articulate the concept of law in a way that accounts for these pre-existing social practices. A conceptual theory of law can legitimately be criticized for its failure to adequately account for the pre-existing data, as it were; but it cannot legitimately be criticized for either its normative quality or its practical implications. A more interesting line of argument has recently been taken up by Brian Bix Following John FinnisBix rejects the interpretation of Aquinas and Blackstone as conceptual naturalists, arguing instead that the claim that an unjust law is not a law should not be taken literally: A more reasonable interpretation of statements like "an unjust law is no law at all" is that unjust laws are not laws "in the fullest sense.
Similarly, to say that an unjust law is "not really law" may only be to point out that it does not carry the same moral force or offer the same reasons for action as laws consistent with "higher law" Bix Nevertheless, while a plausible case can be made in favor of Bix's view, the long history of construing Aquinas and Blackstone as conceptual naturalists, along with its pedagogical value in developing other theories of law, ensures that this practice is likely, for better or worse, to continue indefinitely.
Like Bix, Finnis believes that the naturalism of Aquinas and Blackstone should not be construed as a conceptual account of the existence conditions for law. According to Finnis, the classical naturalists were not concerned with giving a conceptual account of legal validity; rather they were concerned with explaining the moral force of law: On Finnis's view of the Overlap Thesis, the essential function of law is to provide a justification for state coercion a view he shares with Ronald Dworkin.
Accordingly, an unjust law can be legally valid, but it cannot provide an adequate justification for use of the state coercive power and is hence not obligatory in the fullest sense; thus, an unjust law fails to realize the moral ideals implicit in the concept of law.
An unjust law, on this view, is legally binding, but is not fully law. Like classical naturalism, Finnis's naturalism is both an ethical theory and a theory of law. Finnis distinguishes a number of equally valuable basic goods: Each of these goods, according to Finnis, has intrinsic value in the sense that it should, given human nature, be valued for its own sake and not merely for the sake of some other good it can assist in bringing about. Moreover, each of these goods is universal in the sense that it governs all human cultures at all times.
The point of moral principles, on this view, is to give ethical structure to the pursuit of these basic goods; moral principles enable us to select among competing goods and to define what a human being can permissibly do in pursuit of a basic good.
On Finnis's view, the conceptual point of law is to facilitate the common good by providing authoritative rules that solve coordination problems that arise in connection with the common pursuit of these basic goods. Thus, Finnis sums up his theory of law as follows: Again, it bears emphasizing that Finnis takes care to deny that there is any necessary moral test for legal validity: Nevertheless, Finnis believes that to the extent that a norm fails to satisfy these conditions, it likewise fails to fully manifest the nature of law and thereby fails to fully obligate the citizen-subject of the law.
Unjust laws may obligate in a technical legal sense, on Finnis's view, but they may fail to provide moral reasons for action of the sort that it is the point of legal authority to provide.
Thus, Finnis argues that "a ruler's use of authority is radically defective if he exploits his opportunities by making stipulations intended by him not for the common good but for his own or his friends' or party's or faction's advantage, or out of malice against some person or group" Finnis Further, law and its authority is seen as source-based; i.
- The Authority of Law
- Natural Law
Thomas Hobbes and Leviathan Thomas Hobbesin his seminal work Leviathanpostulated the first clear notion of law based on the notion of sovereign power. As Hampton writes, "law is understood [by Hobbes] to depend on the sovereign's will. No matter what a law's content, no matter how unjust it seems, if it has been commanded by the sovereign, then and only then is it law.
In An Introduction to the Principles of Morals and Legislation, Bentham laid the groundwork for a theory of law as the expressed will of a sovereign.
Bentham made a sharp distinction between the following types of people: Expositors — those who explained what the law in practice was; and Censors — those who criticised the law in practice and compared it to their notions of what it ought to be. The philosophy of law, considered strictly, was to explain the real laws of the expositors, rather than the criticisms of the censors. Bentham was also noted for calling natural law "nonsense upon stilts. Differences aside, Austin embraced Hobbes's and Bentham's conception of law as a sovereign command, whose authority is recognised by most members of a society; the authority of which is enforced by the use of sanctions, but which is not bound by any human superior.
The criterion for validity of a legal rule in such a society is that it has the warrant of the sovereign and will be enforced by the sovereign power and its agents. The three main tenets of Austin's command theory are: Austin considered the law as commands from a sovereign that are enforced by threat of sanction.
In determining 'a sovereign', Austin recognised it is one whom society obeys habitually. This sovereign can be a single person or a collective sovereign such as Parliament, with a number of individuals, with each having various authoritative powers.
Austin's theory is also somewhat brief in his explanations of Constitutions, International Law, non-sanctioned rules, or law that gives rights. Insofar as non-sanctioned rules and laws that allow persons to do things, such as contract lawAustin said that failure to obey the rules does result in sanctions; however, such sanctions are in the form of "the sanction of nullity.
Whereas British legal positivists regard law as distinct from morals, their Germanic counterparts regard law as both separate from both fact and morals. The most famous proponent of Germanic legal positivism is Hans Kelsen, whose central thesis on legal positivism is unpacked by Suri Ratnapalawho writes: The key elements of Kelsen's theory are these.
Facts consist of things and events in the physical world. Facts are about what there is. When we wish to know what caused a fact we look for another fact. A stone thrown in the air comes down because of the force of Earth's gravity.
There are seasons because the Earth's axis is tilted at A norm, unlike a fact, is not about what there is but is about what ought to be done or not done. Whereas facts exist in the physical world, norms exist in the world of ideas. Facts are caused by other facts. Norms are imputed by other norms. The requirement that a person who commits theft ought to be punished is a norm. It does not cease being a norm because the thief is not punished.Relationship between morality and the law, also in so-called wicked legal systems, such as Nazism
He may not get caught. The norm that the thief ought to be punished exists because another norm says so. Not all norms are laws. There are also moral norms. Legal norms are coercive; moral norms are not. The legal system is therefore a system of legal norms connected to each other by their common origin, like the branches and leaves of a tree.