Normative Versions of Legal Positivism

1
Normative Versions of Legal Positivism

• H. L. A. Hart (Oxford)
• Hans Kelsen (Vienna, UCLA)

2
Problems with Natural Law Theory

• H. L. A. Hart argues that the command theory
  cannot distinguish between a legitimate
  government and an armed robber ("give me your
  money or else"). The "Gun Man" objection.
• Parliamentary or constitutional law, laws
  governing the actions of the sovereign, do not
  count as law at all.

3
Law as a System of Rules

• Laws constitute a hierarchical system of rules.
• Primary rules are like Austin's commands,
• Secondary rules concern how primary rules are
  recognized as valid, changed, applied to
  particular cases, and enforced.

4
Legal Validity

• A law is valid or binding if it belongs to a
  system of laws that is in force in a particular
  society.
• The validity of a system depends on the validity
  of its most fundamental secondary rules
• Grundnorm (Kelsen)
• Ultimate rules of recognition (Hart)

5
Validity of Grundnorms

• It is generally followed, and
• most people accept it as valid/binding, i.e.,
• they follow it because they believe it is valid,
  and
• they criticize or find fault with those who
  deviate.

6
The Internal Perspective

• Legal theory involves taking the "internal
  perspective" of one who accepts a given system as
  valid.
• This distinguishes law from sociology, which
  always takes the "external perspective" of the
  objective scientist.

7
Some Philosophical Problems

• Reduces to Sociology?
• Vicious circularity in definition of validity?
• What sort of thing is a rule? What is it to
  follow or accept a rule?

8
Does Law Reduce to Sociology?

• The validity of a system of laws seems, on their
  acccount, to be a matter of sociological fact
  which system (which Grundnorms) to most people
  treat as valid?
• This threatens to collapse their distinction
  between the disciplines of law and sociology.

9
A Circular Definition?

• Validity is defined in terms of what most people
  believe to be valid.
• If we don't already understand what legal
  validity means, we can't understand their
  definition.

10
What are Rules (Conventions)?

• It can't be a mere pattern of behavior, since
  that leaves no room for the possibility of
  someone deviating from the norm or breaking the
  rule.
• It can't be a mere linguistic entity, like a
  sentence or statement, since these must be
  interpreted (by a linguistic or semantic rule).