Week 1:
Legal Positivism
LT focus:
- What is the nature of law?
o Profound philosophical enquiry – what is law?
- What differentiates law from morality? From other normative orders?
- What, if anything, accounts for law’s normativity, i.e. binding force? What requirements must law meet in order to be
able to guide our actions?
o Capacity to give us a reason to act in some way or another.
o A norm is more than just a fact
o Philosophy trying to distinguish norms and facts
o Is law binding? Why is law binding?
We approach law like we have an obligation to it- do we have a moral obligation? Or is there another
way to think about it?
- What does the rule of law reveal about law’s moral force?
- What does legal reasoning reveal about the law’s moral force?
o Judges and adjudication
Section Overview:
- The relationship between law and morality
o The first section of LT is about the nature of law, and in particular the relationship between law and morality
o We will examine the philosophical attempt to describe the kind of thing law is and consider criticisms of that
attempt
Hart describing what he is doing as similar to sociology what law is. Others like Dworkin think
this is misguided.
Natural law as something different? Justifying law rather than just describing law [like what Hart is
doing]
o We will examine the philosophical attempt to justify the kind of thing law is
o We will examine the philosophical attempt to understand law in its own terms
Two competing accounts of law’s nature:
- The conventional opposition:
o Legal Positivism is the view that what counts as law is purely a matter of social fact
o Natural Law is the view that what counts as law is in some sense a moral question – what counts as law in a
deeper sense- some central case of law. Law that is satisfied by, and based on, certain morals.
Is legal positivism just pursuing a much narrower enquiry into the conditions of legal validity? - just
doing different things
Legal Positivism: Some Claims:
- Law is a matter of social fact. It is determined its sources not by its merits.
- Law is conceptually/systemically separable from morality
o Two different normative systems
- What law is and what it ought to be are two separate questions
- NOT a claim that there are no necessary connections between law and morality
o + Law may in fact still incorporate moral elements
o But that legal validity (the status of some norm or requirement as law) need/must not depend on its moral merits
Early Legal Positivism:
- Developed in the 19th century, in the wake of the Enlightenment.
o Classical legal positivism
o They wanted to clarify the situation finding that law comes from an identifiable source. Rejecting monarchy-
considered themselves reformists- doing something radical
- Rejection of religious authority. Law’s authority has to be understood as human in origin.
- Law is ‘posited’ (hence legal ‘positivism’)
- Some of the main thinkers include Jeremy Bentham and John Austin, influenced by Thomas Hobbes, who we’ve already
looked at, and David Hume.
Early Legal Positivism:
- Hart considered himself building on, but also critiquing, Bentham and Austin
- Bentham wanted to demystify political authority.
o Was mystified in 2 main ways:
Remnants of feudalism
Common law judges getting to decide things almost as though they’re making law
They thought this was problematic as judges aren’t directly accountable to anyone the
origin and source of their power? No clear source of authority for the judiciary
- If legal and moral authority intertwined, then those who get to interpret one can exercise the other while also disguising
the fact that is what they are doing.
o Judges can pretend that they are merely identifying law, but they’re sneaking in their own moral preferences
o Normative legal positivism
- Bentham and Austin thought it was a mistake to mix up the ideas of law and morality:
Legal Positivism
LT focus:
- What is the nature of law?
o Profound philosophical enquiry – what is law?
- What differentiates law from morality? From other normative orders?
- What, if anything, accounts for law’s normativity, i.e. binding force? What requirements must law meet in order to be
able to guide our actions?
o Capacity to give us a reason to act in some way or another.
o A norm is more than just a fact
o Philosophy trying to distinguish norms and facts
o Is law binding? Why is law binding?
We approach law like we have an obligation to it- do we have a moral obligation? Or is there another
way to think about it?
- What does the rule of law reveal about law’s moral force?
- What does legal reasoning reveal about the law’s moral force?
o Judges and adjudication
Section Overview:
- The relationship between law and morality
o The first section of LT is about the nature of law, and in particular the relationship between law and morality
o We will examine the philosophical attempt to describe the kind of thing law is and consider criticisms of that
attempt
Hart describing what he is doing as similar to sociology what law is. Others like Dworkin think
this is misguided.
Natural law as something different? Justifying law rather than just describing law [like what Hart is
doing]
o We will examine the philosophical attempt to justify the kind of thing law is
o We will examine the philosophical attempt to understand law in its own terms
Two competing accounts of law’s nature:
- The conventional opposition:
o Legal Positivism is the view that what counts as law is purely a matter of social fact
o Natural Law is the view that what counts as law is in some sense a moral question – what counts as law in a
deeper sense- some central case of law. Law that is satisfied by, and based on, certain morals.
Is legal positivism just pursuing a much narrower enquiry into the conditions of legal validity? - just
doing different things
Legal Positivism: Some Claims:
- Law is a matter of social fact. It is determined its sources not by its merits.
- Law is conceptually/systemically separable from morality
o Two different normative systems
- What law is and what it ought to be are two separate questions
- NOT a claim that there are no necessary connections between law and morality
o + Law may in fact still incorporate moral elements
o But that legal validity (the status of some norm or requirement as law) need/must not depend on its moral merits
Early Legal Positivism:
- Developed in the 19th century, in the wake of the Enlightenment.
o Classical legal positivism
o They wanted to clarify the situation finding that law comes from an identifiable source. Rejecting monarchy-
considered themselves reformists- doing something radical
- Rejection of religious authority. Law’s authority has to be understood as human in origin.
- Law is ‘posited’ (hence legal ‘positivism’)
- Some of the main thinkers include Jeremy Bentham and John Austin, influenced by Thomas Hobbes, who we’ve already
looked at, and David Hume.
Early Legal Positivism:
- Hart considered himself building on, but also critiquing, Bentham and Austin
- Bentham wanted to demystify political authority.
o Was mystified in 2 main ways:
Remnants of feudalism
Common law judges getting to decide things almost as though they’re making law
They thought this was problematic as judges aren’t directly accountable to anyone the
origin and source of their power? No clear source of authority for the judiciary
- If legal and moral authority intertwined, then those who get to interpret one can exercise the other while also disguising
the fact that is what they are doing.
o Judges can pretend that they are merely identifying law, but they’re sneaking in their own moral preferences
o Normative legal positivism
- Bentham and Austin thought it was a mistake to mix up the ideas of law and morality:
