Analysis of the contribution legal positivists

Legal positivism started from medieval times where Christians believed that the Ten Commandments were sacred and had pre-eminent value “which was inscribed" in stone by God and was given to Moses on Mount Sinai. This ideology continued until the present day.

Dworkin defined positivism as “Positivism is a model of and for a system of rules, and its central notion of a single fundamental test for law forces us to miss the important standards that are rules." [1] 

Natural law theorists like St Thomas Aquinas [2] classified law into four categories as eternal, natural, divine and human laws. Law to Aquinas ‘consists of rules of action declared by one who protects the community, since God defends and protects the universe [3] ’.

It could be argued that legal positivism encourages us thinking of things such as when specific laws came to be enacted, how they are or how inconsistent they are with one another, how they work with one another, rather than thinking of them in terms of their whole purposes.

Legal positivists believes further that they do not need to think about how to should change the law, or whether or not that law is suitable for the community, or whether that law is part of a much larger moral and social system.

Jeremy Bentham [4] , a legal positivist started the advocacy of legal positivism, in his book [5] he claimed that there are two types of people one called ‘expositors’ meaning those who explained what the law in practice was and the other Called ‘Censors’ - those who criticised the law in practice, comparing it to their notions of what the law suppose to be

Further to Bentham’s opinion he said ‘The philosophy of law, strictly considered, was to explain the real laws of the expositors, rather than the criticisms of the censors’.

He further went on to describe law as ‘an assemblage’ (parliament) or collection of signs expressive of the sovereign’s subjective will’. He argued in his book [6] that English law should be written and clear so that people will know their rights.

John Austin [7] Bentham’s disciple had a different opinion about what the law is and claimed in his book [8] what the law is as ‘the existence of a sovereign whose authority is recognized by most members of a society, but who is not bound by any human superior’ [9] .

He further went on to say ‘the criterion for validity of a legal rule in such a society is that it bears the warrant of the sovereign and will be enforced by the sovereign power and its agents’ [10] 

Hart [11] disagreed with Austin’s view regarding what Austin called law and contrasted Austin’s views by saying ‘Austin would agree that there is nothing in legal positivism that forbids a hierarchy of laws from existing or that the power be vested always in a single person or group’.

Hart [12] went on further in disagreeing ‘that the only legal authorities that courts should recognize are the commands of the sovereign, because only the sovereign is entrusted with the power to enforce its commands with military and police force which concludes that in Austin’s view, law is developed through ‘commands by sovereign backed by sanctions’ [13] .

According to H.L.A Hart [14] a Twentieth century theorist attempts in providing a more complete answer to the question what constitute law by going beyond the narrow ‘command’ and ‘restrictions’ imposed on themselves by Austin in asserting ‘law was more than the decree of a ‘gunman’, a command backed by a sanction’ [15] and argued ‘social rules’, ‘rules of obligation’, ‘rules of law’ which he classified as primary and secondary rules – primary rules imposes duties, setting out what people should do or not do and categories of law such contract and criminal and law of tort while secondary rules comprises of three types – ‘rule of recognition’, ‘rules of adjudication’ and ‘rule of change’.

The most controversial of the three rules is The ‘rule of recognition’ similar to Kelsen [16] ’s Grundnorm or Austin [17] ’s notion of ‘sovereignty’ because it justifies the validity of a legal system as was in British Railways Board v Pickins [18] where it was held courts cannot challenge the validity of statutes or in the case of Factortame Ltd v SSHD [19] - this case involves fishing litigation and it was held that UK government was liable to compensate the Spanish fishermen for breaching the EU law.

A very interesting South African case was Masiya v DPP [20] where the appellant raped a nine old, and the appellant was convicted by the regional court, upheld by the high court, The appellant’s appealed against the decision and at the time the crime was committed, his indecent behaviour was not a crime under the constitution and the appeal was allowed on this basis that the courts had exceeded its power by becoming a legislative body.

Kelsen [21] like Austin believes what law is and not what the law suppose to be, he believes law is made of legal norms and legal acts are determined by these norms, he stressed norm functions is a scheme use in interpreting whether an action is legal or illegal which in turn derived from another norm.

He claimed killing a person who had been condemned to death by due judicial process is not a murder which is different from the killing the murderer himself committed even though the physical event of killing may well be identical such as causing death by hanging.

Dworkin [22] a leading critic of positivism argued both legal positivism and natural law theories are in reality searching for an answer to the question ‘what is law?’ a fundamental question and challenge towards the debate and critique of the natural lawyer and positivist.

Dworkin focuses towards a more specific question of understanding law, gained by asking ‘how do judges find the law’ [23] which calls for a theory provided by legal positivism known as ‘hard cases’ [24] .

Dworkin explained judges make use of standards that do not function as a system of rules, as opposed to what Hart [25] would argue, but operate differently as other sorts of standards [26] . Hart, a positivist theorist, would argue that in the majority of cases, rules will be clear, however, at some point, they will become indeterminate and unclear [27] . This is because they have what Hart calls, an ‘open texture’, and a defect inherent in any use of language [28] . This ‘open texture’, as explained by Hart, refers to actual area of law that is left open for the exercise of discretion by the courts and judges in rendering ‘initially vague standards’ [29] . Dworkin maintains there are two standards operative in our system, namely policies and principles rather one standard. He distinguishes them by explaining that policies attempt to ‘secure the community goal’ where as principles ‘justify political decisions’ by showing that the decision respects or secures some individual or group right. [30] This aim sets out to generally improve the community. [31] 

Dworkin maintains nature principles, contrast to Hart rules can be applied or not applied without affecting their existence, courts uses these standards in order to reach a decision on the ‘hard case’ [32] .

This submission is in disrepute with Hart’s notion of the ‘Rule of Recognition’. For instance, officials in Nazi Germany obeyed Hitler’s commands as law, only out of fear. Dworkin compares both Harts and John Austin’s [33] theory to say that there would be no difference between a group of people accepting a rule of recognition and simply falling into a self-conscious pattern of obedience out of fear [34] .

Dworkin maintains that if acceptance requires more than obedience, then Nazi Germany’s law was no law. He believes it is inadequate in that there is no ‘rule of recognition’ that distinguishes between legal and moral principles. [35] Therefore Hart’s theory fails to capture how lawyers find law and therefore lacks a justificatory force. [36] 

It could be argued that if two rules conflict, one rule must survive the other which means the other rule must be incorrect because the principles are different. They seems not apply to all or nothing but apply together as they have weight, thus balances for the person’s rights [37] . It is notably important that the word ‘principle’ is not used in the sense that it requires compliance with a standard regardless of the consequences [38] ; Dworkin uses it to mean ‘propositions that describe rights’ [39] .

Dworkin continues to challenge the idea to separate law and morality is incorrect, not so far that law should be based purely on morality [40] . For instance, the infamous case of Donoghue v Stevenson [41] , the biblical ‘principle’ not to harm your neighbour effectively becomes a legal principle, therefore morality is inherent in law. Lord Atkin has constructively developed a principle that the neighbour principle is to be applied in future arising situations [42] .

An interesting case of Riggs v Palmer [43] forms the basis of Dworkin’s illustration on how legal principles work where the judges ‘found’ and applied an equitable principle that an individual should not benefit from his crime [44] . Here the decision was formed organically and was not created in a particular way. Dworkin argues that this decision demonstrates that in addition to rules, the law includes principles [45] .

Dworkin believes the answer was already inherent in the society, a substantial belief, he claimed that there is a right answer to every legal question, thus not acting retrospectively as opposed to what Hart believed that there is no law covering a particular gap or situation [46] .

Dworkin argued that Hart would maintain that judges must use their discretion in deciding whether a particular case comes within a rule or not, using statutory interpretation [47] .

Dworkin believes that there is a right answer [48] as in contrast to Hart, who maintains that it is impossible to treat a question raised by the various cases as if there were only one right answer, However, Dworkin does not support the approach that allows a judge to make a policy decision that was not based on law in ‘hard cases’.

He further argues that by Hart failed to take to account of general principles [49] rather than seeing law as solely based on a system of rules. Contrast to Hart, Dworkin maintains that instead of judges to apply legal principles to bring about a correct right answer [50] they tend not to revert to a policy and act as a law maker.

Dworkins’ theory ‘Hard Cases’ continue saying that judges must apply a principle of ‘articulate consistency’ in determining the applicability of statutes and precedents to controversial cases [51] .

He uses the word ‘consistency’ to refer to the application of the principle relied upon, not the application of the rule. He maintains that there was no rule in Riggs v Palmer [52] , only a principle that a person should not benefit from their crime [53] .

Dworkin further maintains that law is a ‘seamless web’ in which there is always a uniquely right answer and strongly rejects Hart’s view that there are ‘penumbral areas of doubt’ within which a judge can exercise free discretion [54] . This is opposed to Dworkin’s strong belief that judges do not have a wide discretion when the rules seem to run out [55] .

He agrees that through judicial precedent, judges agree that earlier decisions have a particular gravitational force [56] . A judge will rarely have the independence to be inconsistent with this notion by the fact that they acknowledge that they are bound by a hierarchy of previous judicial decisions [57] . When judges define this precedent, only arguments of principle are taken into account to justify that principle [58] .

Dworkin illustrated his argument with the analogy of a chess game; perhaps not the most exciting type of illustrations. In the course of the game one player is significantly distracted by the other player (named Tal) persistently smiling. Though this act may not be in breach of the ‘chess rule book’, Dworkin would amaintain that on an analysis of what the game of chess essentially entails, similar to how a judge should decide a hard case; psychological intimidation would have been deemed against the nature of the game [59] .

The referee ought to find the one answer that ‘best fits’ with the general practice of chess. Additionally, leading to another of Dworkin’s argument, the rule already existing prior to the game, it does not act retrospectively. This term retrospection relates to that in hard cases where judges have discretion to decide the outcome of a case, making new law, consequently it acts retrospectively, and a defect in Working’s conventionalist view of law [60] .

However in the light of Working’s view, a party claiming injustice through retrospection is in fact bound by a law that was already available to anyone, if sought in the proper way. The decision merely gave effect to this existential law. [61] 

On the basis of the above analysis, Working is the hardest critic of legal positivism and it is difficult to classify him as a positivist or natural lawyer, however chapter one in Laws Empire stated that he is not a positivist in the sense that where the law seems to ‘run out’, the judge creates a new fitting law, termed as ‘conventionalism’, a strong rejection by Working [62] .

Like Fuller [63] , Working accepts that moral reasoning in an integral part of legal reasoning therefore morality is part of the law, but Working viewed it as not necessarily connected. Both theories suggest that lawyers follow criteria that are not entirely factual but to some extent moral for deciding what propositions of law are true [64] .

Working maintains his position that he does not believe in higher principles above and outside the law, as an everlasting sovereign power. Instead he believes that justice has a merit in its own right. [65] 

He believes positivism does not consider the law as being separate and independent. Instead positivists see the law as comprising a set of ‘discrete’ decisions, enabling a judge to exercise his discretion, or to amend it, contrary to what Dworkin argues [66] .

Dworkin believes that an adoption of an approach, whereby a judge ‘ought’ to operate in the society Dworkin thinks ‘ought’ to exist [67] , would protect against

‘prejudice’, ‘dishonesty’, and ‘corruption’ whilst promoting participation in democracy [68] .

In conclusion There are various criticisms relating to Legal positivism from jurisprudence’s theorists point of view that legal positivists failed in their quest to define what law is, however it is submitted that the above quotation which has been carefully analysed do show legal positivists partake in contributing to the quest of exploring what law is on the basis of their different views in contrast to natural theorists views about what law actually is.

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