The Legal Positivism School of Thought Maintains That a Lawmaker`s Command Should
If the judge can resolve a First Amendment issue only by applying previous court decisions, the matter is resolved by law; If not, the problem is not resolved. To the extent that the judge seeks controversial moral standards to solve the problem, he goes beyond the law because the mere existence of controversy about the law implies that it is vague. According to Raz, references to moral language in the law at most cause judges to consider moral requirements when resolving certain unresolved legal issues. They cannot include moral requirements in the law. Legal principles, like other laws, may be adopted or repealed by legislators and administrative authorities. They may also become legally binding by court order. Many legal systems recognize that rules and principles may be enshrined in law or lose their status as law by case law (Raz 1972, p. 848). If, at the end of the day, the law cannot be established in force or in a presupposed standard, what is its authority based on? Perhaps the most influential solution is that of H.L.A. Hart.
His solution is similar to Kelsens in his emphasis on the normative foundations of legal systems, but Hart rejects Kelsen`s transcendentalist and Kantian view of authority in favor of an empirical and Weberian view of authority. For Hart, the rule of law is social. The final criterion of validity in a legal system is neither a legal norm nor a presupposed norm, but a social rule that exists only because it is actually practiced, that is, used to control behaviour. Law is ultimately based on custom: customs as to who has the power to decide disputes, what are to be considered binding grounds for decision, i.e. the sources of law, and how laws can be changed. Of these three “secondary rules,” as Hart calls them, the most important is the acknowledgement rule determining the source, as it establishes the criteria for final validity in the legal system. It exists only because it is practised by public servants, and it is not only the recognition rule that best explains their practice, it is the rule they invoke when discussing the standards they must apply. Hart`s account is therefore conventionalist in a certain sense (cf.
Marmor 1998 and Coleman 2001): ultimate legal norms are social norms, although they are neither the product of express agreement nor of Schelling-Lewis conventions (cf. Green 1999). So for Hart too, the legal system is rules-based, but at its core, it`s a social norm that has the kind of normative force that customs have. It is a regularity of behavior against which officials take “the internal point of view”: they use it as a norm to guide and evaluate their own behavior and the behavior of others, and this use is evident in their behavior and discourse, including the use of various forms of social pressure to support the rule. and the voluntary application of normative concepts such as “duty” and “obligation” when invoking them. The law therefore has its ultimate foundation in the behaviour and attitudes of its public servants. In the eyes of some, this still seems to imply a puzzling reduction: how can we generate the targets of the legal world from the official consensus? Such concerns motivate Scott Shapiro`s understanding of law and his attempt to break with Hart`s theory: laws, he suggests, should be understood as “generalized plans or plan-like norms issued by those who are authorized to plan for others” (2011: 155). Understanding law according to the model of social planning, Shapiro argues, frees us from misplaced concerns about its metaphysical basis. Just as you or I can adopt a plan for our time simply by willing, so officials in a legal system can make or discern plans for its subjects. However, to the extent that a problem remains, it is not clear whether the concept of planning itself offers a deeper explanation. First of all, planning, whether individual or collective, involves establishing rules in order to achieve certain objectives.
Thus, the ontology of plans becomes part and parcel of the more general ontology of rules, on which Hart rightly focused. Second, it is not clear whether the mechanisms of the law are properly captured under the planning label (for example, should the anti-theft law be viewed as a plan that people do not deprive others of their property? – a somewhat implausible interpretation of the relevant order – or whether the planning element is exhausted by the decision to create the prohibition, in which case the law is not the plan). Nevertheless, Shapiro`s report is a useful reminder that the theoretical complexity of law as a social species does not make an understanding of its foundation based on the daily actions of its actors implausible. Nothing in my book or anything else I`ve written supports [a semantic representation] of my theory. Therefore, my teaching that elaborate municipal legal systems contain a recognition rule that sets out the criteria for determining the laws that courts must apply may be wrong, but nowhere do I base this doctrine on the misconception that it is part of the meaning of the word “law” that there should be such a rule of recognition in all jurisdictions. or the even more erroneous idea that, if the criteria for identifying legal grounds were not established without controversy, the term “law” would mean different things to different people (Hart, 1994, p. 246). Legal positivism is different from legal realism. The differences are significant both analytically and normatively. Both systems assume that law is a human construct.
Unlike American legal realists, positivists believe that in many cases the law provides reasonably determined guidance to its subjects and judges, at least in judicial proceedings.
