MODULES 7 - 12
LEGAL POSITIVISM (WEEK 7)
1. Explain the main characteristics of legal positivism.
● Law is created by human agents – not made by god or discovered, even custom
is not law unless it is recognized as it by human agents.
● Law is a social fact – because it is created by humans. Found as rules declared
by authorities like legislatures and courts.
● Descriptive approach – describing law and identifying the correct sources. Clear
and certain. People understand it better this way. What the law is can be
separated from what it should be.
● Separation of law and morality – They are not necessarily connected. Law is law
even if someone finds it unfair.
● Valid law must be determined by a set of formal criteria (formal validity) – formal
criteria are legal rules with higher authority that moderates: the enactment and
modification of rules with less authority, which authorities have the competence to
do so. Also suggest solutions to disputes connected to specific cases. Formal
criteria makes us recognize the difference between a law as a rule or command
versus simple normativity with less importance.
● An autonomous system of norms – not individual rules but interconnected in the
same system. There is a hierarchy of valid norms. Autonomy means separation
of law from morality and politics. Law has its own independent creation and
application.
2. Explain Kelsen's view on legal positivism.
● “Pure theory of law”: The goal of the methodical and widely accepted Pure
Theory of Law is to offer a framework for comprehending the essence of law
independent of moral, historical, or sociological factors. 2 THESES:
SEPARATION THESIS (law’s existence is separated from moral correctness)
AND NORMATIVITY THESIS (Legal norms derive from other norms, not mere
facts).
● His claims highly support legal positivism.
● Legal monism, or the notion that there is a single, cohesive legal system that
incorporates both domestic and international law, was supported by Kelsen. He
opposed legal pluralism, which holds that several legal systems can survive
without regard to one another in a hierarchical fashion. Natural law theories and
Command theory of law (law is what the law-external, political sovereign wills,
law is a mere fact of command) were criticized by Kelsen because, in his opinion,
they combined normative (what it should be) and descriptive (as it is)
components. He thought that rather than emphasizing what the law should be,
legal experts should concentrate on the positive law, or what the law actually is.
Non-reductive approach.
, MODULES 7 - 12
● Legal norms are like the lens of glasses through which we look at facts and
behavior objectively.
● Closed hierarchy of the legal system: Examining the hierarchical relationship
between legal norms and lower level norms is central to Kelsen's understanding
of law. Legal norms are only considered legitimate when they are derived from
the application of higher level norms, like statutes, and issued by authorized
entities. The validity chain connecting legal norms to higher norms can be used
to identify legal duties. The conclusion of an investigation into the legitimacy of
legal standards is the first constitution of a nation, historically speaking. Political
will and moral obligations cannot give rise to legal obligations, according to
Kelsen, who disregarded these two justifications for the legitimacy of laws. He
proposed the Grundnorm, or basic norm, which holds that a law must be
presumed to be valid in order to address this problem. This is due to the fact that
it cannot be rationally founded; therefore, we must simply assume that it is true,
as doing so will cause the system's chain of validity to break. Law may only be
drawn from another law, even if it is a presumptive one, and cannot be formed
from morality or fact.
● The basic norm, effectivity & validity: Basic norm: as participants in this legal
community, we should behave in the way that the historically original constitution
directs. The validation chain will only function if we take this action. Effectiveness
of law: Generally, laws are made in accordance with the constitution and are
complied with by the populace. People genuinely respect the law and the original
constitution. Validity: the process by which legal standards are validated.
Effectiveness is a necessary condition for a law to be valid, but a law's validity is
derived from its chain of validity, not just from its effectiveness (a social fact). The
autonomous, hierarchical, and historical structure of modern positive law relies
on our willingness to actually adhere to it.
3. Explain the elementary character of formalist legal reasoning.
● Courts should refer to the closed hierarchy to make valid decisions, including the
concrete norm of the court's decision making a connection to the more abstract
and general norms in statutes and eventually the constitution.
● The decision of the court must follow this logic: 1-premise, the norm (the relevant
legal forms) 2-premise, the fact sentence (relevant facts ıf the case as
established by evidence).
4. Explain Schmitt's critique of Kelsen and his decisionist approach to legal
reasoning.
● Legal system and the logic of validity presupposes a normal situation to be able
to work. This cannot work in a state of emergency. In the case of an emergency,
the decision is purely political, not legal.
LEGAL POSITIVISM (WEEK 7)
1. Explain the main characteristics of legal positivism.
● Law is created by human agents – not made by god or discovered, even custom
is not law unless it is recognized as it by human agents.
● Law is a social fact – because it is created by humans. Found as rules declared
by authorities like legislatures and courts.
● Descriptive approach – describing law and identifying the correct sources. Clear
and certain. People understand it better this way. What the law is can be
separated from what it should be.
● Separation of law and morality – They are not necessarily connected. Law is law
even if someone finds it unfair.
● Valid law must be determined by a set of formal criteria (formal validity) – formal
criteria are legal rules with higher authority that moderates: the enactment and
modification of rules with less authority, which authorities have the competence to
do so. Also suggest solutions to disputes connected to specific cases. Formal
criteria makes us recognize the difference between a law as a rule or command
versus simple normativity with less importance.
● An autonomous system of norms – not individual rules but interconnected in the
same system. There is a hierarchy of valid norms. Autonomy means separation
of law from morality and politics. Law has its own independent creation and
application.
2. Explain Kelsen's view on legal positivism.
● “Pure theory of law”: The goal of the methodical and widely accepted Pure
Theory of Law is to offer a framework for comprehending the essence of law
independent of moral, historical, or sociological factors. 2 THESES:
SEPARATION THESIS (law’s existence is separated from moral correctness)
AND NORMATIVITY THESIS (Legal norms derive from other norms, not mere
facts).
● His claims highly support legal positivism.
● Legal monism, or the notion that there is a single, cohesive legal system that
incorporates both domestic and international law, was supported by Kelsen. He
opposed legal pluralism, which holds that several legal systems can survive
without regard to one another in a hierarchical fashion. Natural law theories and
Command theory of law (law is what the law-external, political sovereign wills,
law is a mere fact of command) were criticized by Kelsen because, in his opinion,
they combined normative (what it should be) and descriptive (as it is)
components. He thought that rather than emphasizing what the law should be,
legal experts should concentrate on the positive law, or what the law actually is.
Non-reductive approach.
, MODULES 7 - 12
● Legal norms are like the lens of glasses through which we look at facts and
behavior objectively.
● Closed hierarchy of the legal system: Examining the hierarchical relationship
between legal norms and lower level norms is central to Kelsen's understanding
of law. Legal norms are only considered legitimate when they are derived from
the application of higher level norms, like statutes, and issued by authorized
entities. The validity chain connecting legal norms to higher norms can be used
to identify legal duties. The conclusion of an investigation into the legitimacy of
legal standards is the first constitution of a nation, historically speaking. Political
will and moral obligations cannot give rise to legal obligations, according to
Kelsen, who disregarded these two justifications for the legitimacy of laws. He
proposed the Grundnorm, or basic norm, which holds that a law must be
presumed to be valid in order to address this problem. This is due to the fact that
it cannot be rationally founded; therefore, we must simply assume that it is true,
as doing so will cause the system's chain of validity to break. Law may only be
drawn from another law, even if it is a presumptive one, and cannot be formed
from morality or fact.
● The basic norm, effectivity & validity: Basic norm: as participants in this legal
community, we should behave in the way that the historically original constitution
directs. The validation chain will only function if we take this action. Effectiveness
of law: Generally, laws are made in accordance with the constitution and are
complied with by the populace. People genuinely respect the law and the original
constitution. Validity: the process by which legal standards are validated.
Effectiveness is a necessary condition for a law to be valid, but a law's validity is
derived from its chain of validity, not just from its effectiveness (a social fact). The
autonomous, hierarchical, and historical structure of modern positive law relies
on our willingness to actually adhere to it.
3. Explain the elementary character of formalist legal reasoning.
● Courts should refer to the closed hierarchy to make valid decisions, including the
concrete norm of the court's decision making a connection to the more abstract
and general norms in statutes and eventually the constitution.
● The decision of the court must follow this logic: 1-premise, the norm (the relevant
legal forms) 2-premise, the fact sentence (relevant facts ıf the case as
established by evidence).
4. Explain Schmitt's critique of Kelsen and his decisionist approach to legal
reasoning.
● Legal system and the logic of validity presupposes a normal situation to be able
to work. This cannot work in a state of emergency. In the case of an emergency,
the decision is purely political, not legal.
