Law and Politics 2074
Law and Politics 2074 PSCI 2074
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This 5 page Class Notes was uploaded by Taylor Garrett on Tuesday September 13, 2016. The Class Notes belongs to PSCI 2074 at Virginia Polytechnic Institute and State University taught by Luke P. Plotica in Fall 2016. Since its upload, it has received 11 views. For similar materials see Law and Politics in Political Science at Virginia Polytechnic Institute and State University.
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Date Created: 09/13/16
9/6/2016 Legal Positivism I o H.L.A. Hart “Positivism and the Separation of Law and Morals” o The Dilemma of Antigone After being unjustly exiled from Thebes, Polynices leads an army against the city and is killed in battle King Creon decrees that Polynices shall not be given traditional burial on pain of death His sister, Antigone, defies this and gives Polynices a proper burial according to traditional, religious and moral practice Breaking the law, sentenced to die What was the “right” thing for her to do? Obey the law of the land? Obey the dictates of morality? If something is commanded by the law, we should generally follow it with some exceptions o General notion Was Creon’s decree valid law, or did its conflict with morality nullify it? The most basic premise of natural law theory is that right and wrong are facts beyond our opinion or control For most of human history, some version of natural law has been dominant o Some societies believed that laws were given by gods Ten commandments, Qur’an Others believed that their laws were handed down from ancestors (semidivine Roman Republic, ancient Greek polies) Even in highly legalistic cultures with robust legal codes (Romans, Islamic societies) human laws have been understood as answerable to a higher law o Legality has generally rested upon morality. Origins of legal positivism th th o Renaissance Humanism (14 16 centuries) The world is intelligible to us through reason Institutions are human creations th th o Reformation/Wars of Religion (16 18 centuries) Religious pluralism necessitated toleration and separation of political and religious authority John Locke o Enlightenment Empiricism (18 19 centuries) Both the natural and the human world are susceptible to scientific study and deliberate, scientific intervention David Hume Social sciences starting to take shape If you understand what motivates people, you can create an institution so that those motivations play out Separation of powers such as in the United States th o The Linguistic Turn in Philosophy (20 century) Many socalled metaphysical or moral problems stem from imprecise uses of language If we can clean up the way that we use moral language, we can clean up many of our moral problems Not a problem, but misdescription H.L.A. Hart o British Political legal Philosopher (19071992) o Leading legal positivist o Drew upon methods of linguistic philosophy to address questions of legal theory and practice o Points out criticisms of legal positivism and tries to address them o The Essence of Legal Positivism “We can, and should distinguish law as it is from law as it ought to be” (p. 594). As 19 century utilitarian and legal positivist John Austin said “The existence of law is one thing, its merit or demerit is another. Whether it be or be not is on enquiry; whether it be or be not conformable to an assumed standard is a different enquiry. A law, which actually exists, is a law, though we happen to dislike it. (p. 596) o Yet the separation of law and morals is not absolute positivism allows that moral principles and judgements Often inform the drafting and passage of laws Are sometimes made part of a legal code or are used in deciding particular cases o Positivism maintains that legal facts and moral facts, legal validity and moral goodness are distinct and distinguishable. o First Criticism The Criticism: Positivism relies upon a flawed command theory of law laws are orders from the sovereign, backed by punishment, that require or prohibit certain actions Someone with a lot of power telling us to do something gunman wanting money Reply: The command theory of law is indeed flawed while it correctly describes some laws (criminal laws) it cannot describe others (laws conferring legal rights, laws regarding contracts) Yet positivism does not require a command theory of law o Second Criticism Positivism is formalistic, insisting that judges decide cases mechanically, using logical deduction (thus keeping law and morality separate) but in reality, laws have a clear core meaning surrounded by a penumbra of ambiguity which requires judges to draw upon extralegal moral principles to decide hard cases Reply: Laws are incurably incomplete and we must decide the penumbral cases rationally by reference to social aims yet the core of settled meaning takes us quite far and still helps to orient and restrain appeals to extra legal principles Acknowledging that a legal system is incomplete and its components are indeterminate does not mean that “what law is” can only be understood in reference to ideals of “what law ought to be.” Hart: we don’t have to be followers of Aquinas to make it work. o Third Criticism: Positivism leads to blind obedience to the law as it is, stifling the willingness to criticize or defy unjust laws Reply: We mustn’t overestimate the bare fact that a rule may be said to be a valid rule of law, as if this, once declared, was conclusive of the final moral question: Ought this law to be obeyed? (618) In keeping law and morality distinct, we remind ourselves that simply because X is the law doesn’t mean that X is what morality requires. Hart Conclusion o Like nettles, the occasions when life forces us to choose between the lesser of two evils must be grasped with the consciousness that they are what they are. The vice of the principle that, at certain limiting points, what is utterly immoral cannot be law or lawful in that it will serve to cloak the true nature of the problems with which we are faced and will encourage the romantic optimism that all the values we cherish ultimately will fit into a single system, that not one of them has to be sacrificed or compromised to accommodate another (620.) o Keeping law and morality mostly separate forces us to face the real issues before us, however unpleasant or messy they may be You want freedom, but this may result in inequality You want equality, you may have to give up some freedoms Austin and Hart: the validity of a law is completely separate from its moral character a law is law, even if it does or commands immoral things. Was Antigone right in disobeying the law and burying her brother? o Not according to Austin and Hart. 9/8/2016 Legal Positivism Continued H.L.A. Hart, “The Concept of Law” We obey laws because o Threat of punishment o Serves social welfare o Risk aversion o Sense of personal morality o Habit/education/social pressure Command theory of law is not a good model o Criminal laws o Gunman scenario A points a gun at B and demands money B is then obliged to comply but is B obligated? John Locke would say no that person is wronging you Right to life, liberty and property Hart also says no this scenario fails to demonstrate the moral or legal sense of “obligation” or “duty” thus, a legal system cannot be this scenario writ large. Obligation and Social Rules o Social rules involve a combination of regular conduct with a distinctive attitude to that conduct as a standard. o Rules impose obligations “when the general demand for conformity is insistent and the social pressure brought to bear upon those who deviate or threaten to deviate is great. When deviation is met with unofficial or informal disapproval, criticism, shame, etc., the rules are moral rules, imposing moral obligation Respecting your elders When deviation is met with the threat of coercive force or sanction, the rules are legal rules, imposing legal obligation Paying your taxes Difference lies in how a breach of a rule is handled o We can imagine a community in which social rules are completely informal no legislature, courts or police rules are kept and enforced by the community itself shame, shunning) o Problems with such a system Uncertainty regarding what the rules are and require The rules are static, changing slowly and only as the informal customs of the community change Inefficiency of enforcement and of dispute settlement o The distinctive features of a complete legal system are essentially remedies to the above problems. Law and Union of Primary and Secondary Rules o Primary rules create obligations upon individuals and their conduct, often attaching penalties Criminal prohibition of murder o Secondary rules govern the primary rules Rules of Recognition (remedies uncertainty): identifies which rules count as law in our system Rules of Change (remedies the static character of the rules): empower an individual or body of persons to introduce new primary rules for the conduct if life and to eliminate old rules. Rules of Adjudication (remedies inefficiency): empower persons “to make authoritative determinations of whether a primary rule has been broken. Creates courts and police An Infinite Regression? o In the US, regular laws draw their validity from procedures of enactment and adjudication set forth in the Constitution o The Constitution draws its authority as a rule of recognition from the will of “We the People” o Upon what does the sovereignty of the People rest? Must it rest upon something? o As Hart says elsewhere in The Concept of Law, “A rule of recognition is unlike other rules of the system. The assertion that it exists can only be an external statement of fact.” It is not in the system, but is the fact upon what the system rests. o Hart was opposed to natural law and supported legal positivism. Still believe moral principles play into the legal system When Congress is deciding to criminalize a certain activity, they will ask themselves what is right and wrong what should the law require? They are important also in the actions of citizens following or challenging primary rules The reasoning and decisions of judges adjudicating “hard” cases arising under primary rules o Matters of morality are irrelevant to Whether or not a primary rule is a valid rule of law What kinds of primary rules a legislature is authorized to make Whether or not citizens are legally obligated to follow valid primary rules The reasoning and decision of judges in most “easy” cases Difference between a rule of recognition and a moral law? o Both are external to our subjective beliefs and desires both are valid and authoritative whether an individual believes them to be so or not. o Both can be used to identify whether or not particular rules of conduct are valid as laws (though for very different reasons) Is there a true, meaningful difference to be had, or are positivists just dressing up natural law in different clothes?
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