Positivist Legal Theory - Essay Example

Positivist Legal Theory Positivist Legal theory sets out the law as a clear system of primary legal rules which confer certain rights on individualsin accordance with an established set of principles that are based upon the social context within which a particular group operates1. Where interpretation of the law is concerned, there is also a framework of meta rules that exists, which Hart referred to as the rule of recognition2. Therefore, the parameters of the law are clearly established and there is less scope for ambiguity in the application of the law, since it is administered in accordance with an established framework of rules. This allows clear distinguishing of matters of law from matters involving morality, where a higher divine mandate may be invoked. Questions involving morality may create disparities and difficulty in a precise application of the law, since individual and group moral beliefs may differ from place to place and may not allow for the uniform application of the law. However, by clearly specifying that the law and morality are separate questions, the positivist theory allows legal questions to be clearly distinguished from questions involving morality. The salient aspect of the positivist legal theory that was put forward by Hart, is that it offers a comprehensive set of rules, both direct rules as well as secondary meta rules that help to specify how the primary rules will operate. According to Austin, “a law may be defined as a rule laid down for the guidance of an intelligent being by an intelligent being having power over him.”3 Austin also supports Bentham’s views4 in that every legal norm needs to constitute a threat that is backed up by a sanction; therefore coercion is an essential feature of the law. However, when there is too much of rigid adherence to the rules, the scope for judicial interpretation may be seen to be limited. Therefore Hart fiercely opposes the predictive interpretation of law based upon its coercive aspect on the grounds that such interpretation “obscures the fact that, where rules exist, deviations from them are not merely grounds for prediction that hostile reactions will follow.... but are also a reason or justification for such reaction and for applying the sanctions.”5 The law viewed as a set of rules therefore also involves the social learning aspect, which Raz has emphasized, applying a test of behavioral guidance to determine that a person could have come to accept the rules without actually deciding to do so, or questioning the original justification for the rule itself.6 According to Hart, a full blown system of law must be equipped with more than mere rules, since these are only “concerned with the actions that individuals must or must not do”, while secondary meta rules that have the primary rules as their subject matter help to “specify the way in which the primary rules may be conclusively ascertained, introduced, eliminated, varied, and the fact of their violation conclusively determined.”7 Thus, while primary rules spell out the obligations of the individual, secondary rules help courts to resolve disputes over the application and interpretation of those primary rules and may therefore be classified as rules of recognition. Hart describes those laws that impose duties on individuals as the primary rules of obligation, where the function of judicial interpretation is limited8. However, when the primary rules are not sufficiently clear or comprehensible, then there is likely to be uncertainty in determining duties and obligations under the law, which will necessitate the application of secondary meta rules that he characterizes as the rules of recognition. In some instances, where primary rules are inadequate to satisfy the requirements of the law, it may be necessary for judges to engage in creative judicial interpretation to ensure justice, which in some cases may also mandate the formulation of new laws. Hart’s Rule of recognition thus allows for judicial interpretation of the law which may even extend to the evolving of new statues where necessary. The application of the law to an individual case could form the precedent for a general rule of law that will be applied in the future, as has been the case with Roe and Hedley Byrne. In the landmark case of Roe v Wade9, the existing law on a woman’s right to an abortion was changed and the factor impelling the decision of the judges in this context was the secondary rules that were the result of the social context governing the individual case. Another such case that may be cited is that of Hedley Byrne10 where the judges expanded the scope of contract law, circumventing the Doctrine of Privity of contract, to include and allow third party action under tort. As explained by Raz, “Many legal systems recognize that both rules and principles can be made into law or lose their status as law through precedent.”11 This is precisely the aspect that leads to the judicial law-making function, since existing laws can be over-ridden or new laws mooted through the precedent established by judicial decisions. This is so even in a country like the UK where according to Dicey, the judicial role is to protect Parliamentary sovereignty from any encroachment by the executive and in doing so, fulfill the function that Parliament has assigned to judicial authorities.12 As Lord Browne Wilkinson has pointed out, British judges have already used their judicial power in several cases to protect what they consider as fundamental rights indicating their willingness to subject government initiatives impacting upon fundamental rights to “the most anxious scrutiny”13 Therefore, the significant impact of judicial decisions in cases such as Hedley are important in establishing the law-making role that is partly imbued upon judicial authorities. On the basis of the above, it may therefore be noted that the positivist theory has provided for law as a system of legal rules, both primary rules which confer legal rights in duties and the secondary meta rules of recognition, which also take into account, legal precedents and the need for flexibility in the application of the law. The important aspect of positivism is that it clearly distinguishes the law from issues that involve morality, which according to Hart has no bearing on the law. The law and morality are viewed as strictly separate. According to Klaus F, the definition of law must be completely free from moral notions14, while Hart questions whether law should be conceptualized as coercive mandates and moral commands and concludes that there may be no moral justification mandated through legal rights and duties15. Therefore, legal questions can be clearly distinguished from questions regarding morality and the application of the law. The positivist theory therefore differs sharply from questions of natural law, which are mainly concerned with the substantive content of positive law and its congruence with morality16. Natural law supports the existence of a higher divine law, against which man made laws must be measured. Fuller contends that framing of rules of law is inevitably linked to morality, since (a) it is geared towards achieving the end result of social order and (b) it achieves this social order through a respect for individual autonomy, thus a failure to introduce principles conditioned by morality could produce a bad system of law, one that may be disputed as being law at all.17 Dworkin advances the proposition that in deciding difficult cases for which no effective legislation is found to exist, judges may invoke legal principles that are derived from a broad based framework of principles, which must also be considered to be equivalent to law although they may suggest rather than force a particular outcome.18 In the application of principles, judges may often use a moral basis in law which is conditioned by universal beliefs of fairness and equity. In conclusion therefore, it must be stated that every legal question may involve a moral dimension. However, by clearly establishing a framework of primary and secondary rules, on the basis of which the law is administered, the positivist theory allows legal questions to be distinguished from questions of morality and allows for a uniform application of the law on the basis of a set of universal legal principles, according to which the law and morality are distinct and separate. Bibliography * Austin, John, 1977. Lectures on jurisprudence and the philosophy of positive law. MI: Scholarly Press. * Bentham, Jeremy, 1782. Of Laws in general. HLA Hart edition, London: Athlone Press, 1970, p 1, 28 * Barnett, Randy E, 1978. “Toward a theory of Legal Naturalism.” Journal of Libertarian Studies, 2(2): 97-107 [online] available at: http://www.mises.org/journals/jls/2_2/2_2_1.pdf * Dicey, A/.V. (1885) “Law of the Constitution” 10th edition, 1914. Oxford: Oxford University Press * Dworkin, Ronald, 1977. Taking Rights Seriously. Cambridge: Harvard University Press, at pp 40 * Fuller, Lon L, 1964 . The Morality of Law. New Haven: Yale University * Hart, H.L.A., 1994. The concept of law. 2nd edn. Oxford: Clarendon Press * Hedley Byrne v Heller (1963) 2 All ER 575. * Klaus, F Per, 1996. Farewell to legal Positivism: The separation thesis unraveling IN George, Robert P. The autonomy of law: Essays on legal Positivism Oxford: Clarendon Press, pp 321-334 * Philosophy of Law [online] available at: http://www.hku.hk/philodep/courses/law/Hart%20hnd05.htm * Raz, Joseph, 1972. Legal Principles and the limits of law 81, Yale Law Review, 823 * Raz, J, 1975. Practical reasons and Norms Princeton University Press * R v Secretary of State for the Home Department ex parte Bugdaycay (1987) AC 514 at 531 Read More