Critically Evaluate the Positivist Claims For Validity of Legal Rules - Essay Example

"Positivists claim that the legal validity of a rule is a matter of that rule’s derivability from some basic conventional criterion of legal validity accepted in the particular legal system in question . . . The mere fact that a rule is just or reasonable will not make it a law; nor does the injustice of a rule demonstrate that it is not a law.” Positivism is concerned with the interface between concepts of rules and ideas of authority. This structure is held together by consideration of issues such as validity and obedience. Validity allows for the external legitimization of the structure. In reality, all these various forces that make up a legal structure are in a dynamic equilibrium with one another. Legal systems are not static, immutable structures but rather mutable, and ever-changing organisms. The fact that they are constantly changing means that some constancy as regards to the need to obey the “rules” of a legal system is needed. Otherwise there is chaos. The apparent paradox within the idea that “the mere fact that a rule is just or reasonable will not make it a law” and also, “nor does the injustice of a rule demonstrate that it is not a law” is in fact satisfied by an understanding that laws are, by their nature, limited in scope. Laws cover a finite number of situations whereas the experience of life for the series of individual human beings that make up a society is infinite. Thus it might well be “just” and/or “reasonable” to have a rule that people should be “kind to one another”, but this will not make such a law feasible. Conversely, a rule that says that people of different races cannot marry (as occurred in the US South) is not made invalid as a law just because it is unjust. The morality (or otherwise) of a rule is, within the positivist sense, irrelevant to whether or not it is a law. It is a law because it is held within a complex legal structure that defines it as “law”. If laws are essentially arbitrary in nature, why should citizens of a country obey them? Rousseau, in his seminal work, The Social Contract, offers a sensible explanation. In this analysis of the relationship between a government and its citizens, Rousseau argued that there is a “contract” in place between the two groups. The citizen gives up his “freedom” to do whatever he wants, and thus to break certain laws, in exchange for the government’s promise to protect his/her safety. Thus a citizen stops at a red light – thus giving up his innate “freedom” to pass through it – in exchange for the government enforcing red light laws that will enable him to safely drive down the street when the light turns green. This is a very ‘modern’ theory of obedience to rules and laws, based as it is upon the idea that the government and its people have essentially mutual interests. Within Rousseau’s vision, the State clearly exists to serve the People. Some earlier theories of jurisprudence relied upon more authoritarian principles of law obedience that, despite their age, still have relevance today. John Austin, with his The Province of Jurisprudence Determined (1832) suggested the idea of “habitual obedience”, that is obedience given to a sovereign (or perhaps elected government) based upon a fear of sanctions. Crudely, people obey the law because they fear the consequences if they do not. On a superficial level Austin’s ideas seem self-evident: people do avoid breaking the law because of the consequences if they do on an individual level. However, if a whole system of laws is based solely (or nearly completely) on “habitual obedience” then it is by nature fragile and ripe for change. A frightened people has no loyalty to the system of laws other than that which is forced upon them. If they get the chance to successfully rise up, or if another member of the ruling class sees a chance at taking over, then it is likely to occur. Habitual obedience occurs within totalitarian states and dictatorships, but these are often short-lived, while superficially powerful. Democratic systems which have tended to be more stable (and thus powerful) in the long-run, despite their apparently weakness vis-a-vis state control of the individual , are based upon Rousseau’s Social Contract and upon a sense of “duty” rather that forced “obligation”. Hart’s critique of Austin is valid form the point of view that not all societies with laws also have an individual (or body) that can be sensibly regarded as a “sovereign” (Coleman, 2001). The idea that even within democracies there is a “sovereign” (the US President? The British Prime Minister) who is owed allegiance to, but who answers to no-one is factually unfounded. The whole system of democracy is based upon the idea that no individual is above the law. Austin’s theory of the law seems to reflect the famous dictum from the French King of “l’etat, c’est moi” – an idea which the French people unmistakably rejected through beheading him. Modern day democracies are based upon the willing assent of the governed rather than their servitude. The view of the law as being merely a system of commands that are either obeyed or not obeyed is too simplistic. This does cover the criminal law, but in most advanced societies most laws are not concerned with criminal conduct but rather with the manner in which people should deal with one another. Thus there are “rules empowering citizens” that enable them to elect officials, enter into contracts, buy a house etc.. These are rules that essentially liberate people through allowing them to perform certain acts within carefully defined boundaries. There are many other different theories of law, including the Marxist and the Labeling theories. Karl Marx suggested that laws were generally a codified means by which one class (the ruling) keeps everyone else (ie. you and me) in check. Marxists in general recognize that for society to function efficiently, there needs to be social order. However, they believed that in all societies except the Communist one, laws were designed to be of advantage to the wealthy. Thus the famous Marxist dictum that “property is theft” could be applied to my mistaken identity in the book store. Labeling theory suggests that the labels we give to individuals effects how they eventually act. Thus if a person comes from a gender or racial group that is perceived to be criminal, then they are more likely to act in a criminal way. The converse is also true – if you come from a supposedly law-abiding group – within American society, white upper class would be an example, then you are less likely to become a criminal. Laws are needed in order to stop an individual labeling another and treating them differently: they are an attempt at being objective. The positivist theory of legal validity is on its face both sensible and observable within many societies. It is based largely upon a fact: laws (and the associated rules) are artificial inventions of human beings and are thus maintained by systems put in place by human beings. The positivist view is that there are no “natural laws”, but rather self-sustaining systems that have energies flowing within them that maintain them. The fact is that laws/rules are much more resilient than the various theorists would suggest. Actual life is more complex than the models that they put forward. For example, in most countries speeding laws are routinely ignored by the vast majority of the population. If the speed limit is 70 mph nearly all cars in the middle and fast lane will be going faster. Cars may be traveling at 80mph but will probably not be going at 100 mph. There is an unwritten (but well understood) “rule” that the police will not stop you if you are going at 75 or 80, but will if you are going at 100. A system of laws does not collapse because a majority of the population ignore certain laws, but rather, paradoxically it is almost strengthened by it. A society that allows a compromise on certain laws such as speeding is a mature and complex one that has various forces entwining with one another that assure the fundamental stability of it. While laws must, by their very nature, be absolute: an act is either legal or illegal, a contract is either binding or non-binding; the rules of society are more flexible. They relate to the laws, and often influence how far laws are obeyed (or otherwise) and act as the glue that allows a society to be both flexible and stable. If laws become too remote from the rules that society is developing they either become irrelevant (and are thus ignored) or are changed. This interpretation of the relationship between rules and laws is in fact positivist in nature as their relationship is “validated” by the common adherence of the population to them. The rule is that speeding at 80 is acceptable, but not at 100. The law needs to set an exact figure, and it provides a territory for the rule to work within. ____________________________________ Works Cited Austin, John. The Province of Jurisprudence Determined, 1832. Coleman, Jules. Hart’s Postscript: Essays on the PostScript to the Concept of Law. OUP, New York: 2001. Marx, Karl. Das Kapital. Gateway, New York: 1999. Rousseau, Jacques. The Social Contract, OUP, London: 1974. Read More