Criticisms Leg Positvism

CRTIQUES OF LEGAL POSITIVISM 1, Common law reasoning - gives instances of a norm being valid because of its moral content
rather than being based on a social source 2. Purposive Interpretation - the distinction between law as it is and law as it oufht to be is not as sharp as legal positivists make out 3, Customary Law - John Austin, a legal philosopher, wrestles awkwardly with fitting customary laws into a system based on commands. He concludes that customary norms cannot be legal rules because they are not commands. However, they can become legal rules when adopted by judges 4. Landmark cases where courts change radically what most judges and commentators had assumed the law to require, but the courts insist that they are merely discovering or clarifying the existing law - For legal positivists, they could just simply refer to these cases as instances of judicial legislation. However, judges and commentators resist such characterizations because they believe that the law works itself pure. Legal positivism relies more on those aspects of law that derive from WILLthe choice of some identifiable lawmaker. Legal positivisms focus: the authoritative sources and officials 5. Significant disagreement - Dworkins criticisms and arguments 6. Legal mistake Herbert Leonel Adolphus Hart - He was an influential legal philosopher of the 20th century - He was Professor of Jurisprudence at Oxford University and the Principal of Brasenose College, Oxford. - Law comprises rules entirely which are divided into two categories A. Primary (duty-imposing rules) - grant rights or impose legal obligations upon the citizens (e.g. Criminal law which consists of primary rules) B. Secondary rules (power-imposing rules) - stipulate how primary rules are formed and validated, involving rules of change, adjudication and recognition 1. Rule of Recognition - the rule by which any member of society may check to find out what the primary rules of the society are. In a simple society, Hart states, the recognition rule might only be what is written in a sacred book or what is said by a ruler. Hart viewed the concept of rule of recognition as an evolution from Hans Kelsen's "Grundnorm", or "basic norm." 2. Rule of Change - the rule by which existing primary rules might be created, altered or deleted 3. Rule of Adjudication - the rule by which the society might determine when a rule has been broken and prescribe a remedy. - "Open-texture" Theory This was his opposing view regarding John Dworkins Theory of Ajudication. According to him, in some situations, judges need to exercise their discretion when a case is not governed by any existing rule of law. This is due to the indeterminacy of the application of rules. And this was because of three main reasons: language is indeterminate, general standards are used in the rules, and there is indeterminacy in the system of common law precedent. All of these reasons lead him to conclude that there is no unique answer and judges may exercise their discretion to make new laws if some situations arise and they cannot find any existing rule, which is relevant.
CRITICS OF LEGAL POSITIVISM (more on the reason side of law, weakest in dealing with the will
aspects of law) A. Ronald Dworkin - He challenges Legal Positivism according to three general themes:
1. The challenge to the picture legal positivism gave (or seemed to give) that legal systems were merely system of rules
2. An argument that legal positivism was wron in believing that questions of legal validity are, by their nature, separate from considierations of the content or the merit of purported legal norms
3. A challenge to the general belief that law and legal validity are conceptually separates from questions of morality and moral worth
- He criticizes Harts version of legal positivism and argued that it must be rejected because it assumes a view of legal system that consists entirely of legal rules, when legal systems should contain principles as well
- According to him, legal principles differ from legal rules. Legal principles are moral propositions, which are grounded in the past actions of legal officials. They are not conclusive for the cases to which they apply.
- He criticizes Harts theory of Recognition because it couldnt identify valid legal principles - Criticizing Hartian tradition, he argued that Legal positivism could not adequately account for pervasive disagreement within legal practice.
- Harts model of law falls short, both descriptive and morally, compared to his own interpretive theory of law
- His arguments prompted the development of Inclusive Legal Positivism and Exclusive Legal Positivism
B. John Finnis - The most prominent legal theorist working within the natural law tradion - Arguments:
1. Law must be understood in terms of a description of the past acts of legal officials
2. Law must be understood in terms of reasons for action (for officials and citizens alike) - must focus on what on what constitutes good (moral) reasons for action for full and proper analysis
- laws status as a kind of social institution (Legal positivism view) vs laws status as a reason for action (Natural law theory) in affecting peoples moral obligations.
C. Stephen Perry - He argues that Hart was wrong to believe that a descriptivemorally, neutral, nonevaluativetheory of law was possible
- According to him, in the construction of a theory of law, choices must be made and theories cannot be just an accumulation of facts.

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CRTIQUES OF LEGAL POSITIVISM 1, Common law reasoning - gives instances of a norm being valid because of its moral content

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