Positivism,Legal Validity,and the Separation of Law and Morals

The essay discusses the import of the separability thesis both for legal positivism and for contemporary legal practice. First, the place of the separability thesis in legal positivism will be explored, distinguishing between “standard positivism” and “post‐Hartian positivism.” Then I will consider various kinds of relations between law and morality that are worthy of jurisprudential interest, and explore, from a positivist point of view, what kind of relations between law and morality must be rejected, what kind of such relations should be taken into account, and what kind of such relations are indeed of no import at all. The upshot of this analysis consists in highlighting the distinction between two different dimensions of legal validity (formal validity and material validity respectively), and in pointing out that the positivist separability thesis can apply to formal validity only. On the other hand, when the ascertainment of material validity is at stake, some form of moral reasoning may well be involved (here and now, it is necessarily involved). The essay concludes with some brief remarks on the persisting importance of the positivist jurisprudential project.     

The Distorted Jurisprudential Discourse of Nazi Law: Uncovering the ‘Rupture Thesis’ in the Anglo-American Legal Academy

It has been remarked that the ‘rupture thesis’ prevails within the Anglo-American legal academy in its understanding of the legal system in Nazi Germany. This article explores the existence and origins of this idea—that ‘Nazi law’ represented an aberration from normal legal-historical development with a point of rupture persisting between it and the ‘normal’ or central concept of law—within jurisprudential discourse in order to illustrate the prevalence of a distorted (mis)representation of Nazi law and how this distortion is manifested within the discourse today. An analysis of the treatment of Nazi law in two major 50th anniversary publications about the 1958 Hart–Fuller debate, and a review of representations of the Third Reich within literature from the current discourse, demonstrates that the rupture thesis continues to be reproduced within jurisprudence. An examination of the role of Nazi law in the Hart–Fuller debate itself shows that it can be traced back to the debate, where it was constructed through a combination of conceptual determinism and historical omission. It concludes that the historical Nazi law has great significance for the concept of law, but neither positivism nor natural law has properly theorised the nature of the real Nazi legal system.     

论中国民法的法学实证主义道路

我国民法当前所面临的诸多问题都可归结为道路选择的问题。要避免法学因法典编纂后如影随形的法律实证主义潮流堕落为"法之蛀虫",继续保持蓬勃的发展势头,为世界民法担当原创使命,并沿一带一路催生新共同法。这是一条法学实证主义的道路。但在法史上,法学实证主义只是法律实证主义等术语的陪衬,近代以来后法典时代的民法发展为此要走很长弯路,才有意无意间重还先贤的定见。应从法史、法哲学、方法论三大维度,认清法学实证主义的根本追求是打开法律实证主义及法典带来的枷锁,确保现行法能自由地进化,确保个案正义,同时却又不断提升现行法的稳定力。这一道路选择将回应再次超越国界、取法乎上、打造新共同法的时代吁求,使中国民法的发展道路深深嵌入世界民法的发展背景之中。而我们当前所面临的诸多问题,也有望从中得到妥当的解决。     

Beyond Inclusive Legal Positivism*

In this essay, I characterize the original intervention that became Inclusive Legal Positivism, defend it against a range of powerful objections, explain its contribution to jurisprudence, and display its limitations and its modest jurisprudential significance. I also show how in its original formulations ILP depends on three notions that are either mistaken or inessential to law: the separability thesis, the rule of recognition, and the idea of criteria of legality. The first is false and is in event inessential to legal positivism. The second is inessential to legal positivism. The third is likely inessential to law. I then characterize the central claim of ILP in a way that relies on none of these: ILP is the claim that necessarily social facts determine the determinants of legal content. I show that ILP so conceived leaves the central debates in law largely untouched. I suggest how the most fundamental of these—the question of the normativity of law—at least can be usefully addressed. The essay closes by suggesting that even though one can distinguish the social from the normative dimensions of law, a theory of the nature of law is necessarily an account of the relationship between the two: It is a theory either of the difference that certain distinctive social facts make in normative space, or it is an account of the distinctive normative difference that law makes, and the social and other facts that are necessary to explain that difference. One can distinguish between but one cannot separate the social from the normative aspects of legality.     

分离命题与法律实证主义

法律与道德的分离命题是法律实证主义的一项重要主张,它包含了弱的和强的两种分离命题。哈特主张的是弱分离命题,它主张在法律的合法性标准的外在方面法律与价值的必然分离。弱分离命题需要社会事实命题的支持,它没有资格作为法律实证主义的基础命题。而在合法性标准的内在方面,法律与道德存在必然联系。内在必要联系命题可以为法律的规范性提供合理说明,并为消除自然法与法律实证主义的对立和融合两者提供了新的理论前景。     

Dialogue with Dictators: Judicial Resistance in Argentina and Brazil

Throughout the world, judges are often asked to implement the repressive measures of authoritarian rulers. Which conception of legal interpretation and judicial role, if any, make judges more likely to resist such pressures? That question, central to Anglo-American jurisprudence since the Hart-Fuller debate, is addressed by examining recent military rule in Argentina and Brazil. In Argentina, judges were sympathetic to military rule and so criticized its “excesses” in the jurisprudential terms favored by the juntas: positivism and legal realism. Brazilian judges, by contrast, were largely unsympathetic to military rule, and so couched their criticism in terms of natural law, in order to raise larger questions and reach a broader public. Empirical study of the cases and conceptual analysis of existing theories both reveal that no view of legal interpretation inherently disposes its adherents to either accept or repudiate repressive law. Contingent political circtrmstances—the rulers’favored form of legal rhetoric, and the degree to which judges accept the need for a period of extra-constitutional rule—determine which legal theory fosters most resistance. But since most authoritarian rulers nominally affirm their constitutional predecessors’positive law and are often unwilling to codify publicly their most repressive policies, strict literalism usually offers the most congenial idiom for judicial resistance to such regimes.     

A Realist View of Hindu Law

Abstract. Hindu law represents one of the least known, yet most sophisticated traditions of legal theory and jurisprudence in world history. Hindu jurisprudential texts contain elaborate and careful philosophical reflections on the nature of law and religion. The nature of Hindu law as a tradition has been subject to some debate and some misunderstanding both within and especially outside of specialist circles. The present essay utilizes the familiar framework of legal realism to describe the fundamental concepts of law and legal procedure in Hindu jurisprudence. Questions about the place of natural law theory and legal positivism in relation to Hindu law are also considered.     

The Sheffield School and Discourse Theory: Divergences and Similarities in Legal Idealism/Anti‐Positivism*

Abstract. When first I began this paper, I envisaged it as a fairly straightforward exercise in comparison between the Sheffield School’s and Discourse Theory’s varieties of legal idealism or anti‐positivism (these terms being synonymous for the types of theory that contest positivism’s separation thesis, that is, the contention that there is no necessary conceptual connection between law and morality). One obvious distinction, for example, is between the moral substance at the heart of these respective theories: the Sheffield School’s legal theory being founded on Alan Gewirth’s Principle of Generic Consistency, and Alexy’s theory focusing on Radbruch’s intolerable degree of injustice. However, the more I thought about the two respective theories, the more interested I became in one particular issue: the denial of the separation thesis that constitutes legal idealism. Here, I present a paper which is not so much concerned with the substance of two different types of legal idealism or anti‐positivism, but which focuses on the question of whether and in what way either or both of the theories can correctly be characterised as legal idealist or anti‐positivist. I focus in this paper on two works in particular: Deryck Beyleveld and Roger Brownsword’s Law as a Moral Judgment (1994), and Robert Alexy’s The Argument from Injustice (2002).     

The Legitimacy of Law: A Response to Critics*

Abstract
In this paper, the author responds to the claim that his critique of legal positivism, based on an account of adjudication in South Ahica, misses its target because it ignores, first, the positivist thesis of judicial discretion and, secondly, the fact that positivism offers no account of judicial obligation. He argues that these theses expose a tension in positivism between its commitments to liberal individualism and to the supremacy of positive law, a tension which can be resolved only by situating positivism in its true context, the Hobbesian argument for the legitimacy of law. Following Dworkin, he advocates the practice-oriented common law tradition, one that makes the legitimacy of law a matter of standards already implicit in law which are best revealed in adjudication.     

法律原则、自由裁量与良法价值理念的构建

实证主义法学与新自然法学派博弈之论点在于法律是由单纯法律规则还是由法律规则、法律原则和政治道德构成的。实证主义法学在强调法律为双重规则统一体的基础上,承认包括法官造法意义上的自由裁量权的存在;而以德沃金为代表的新自然法学派则认为法律构成除规则外,还存在原则和政治道德等因素,且主张自由裁量行为是法官在法律规定幅度内的司法行为,如超越此圭臬,就是一种法官的恣意行为、不正义行为。两者在法律构成上的长期激烈争论,旨在证成何种构成模式的法能最大效应地体现人类社会所追求的公平、正义和秩序的规范价值理念,或言之,法律应具有何种有效体系,方能消除人治状态而实现良法之治。     

On the Concept and the Nature of Law

Abstract. The central argument of this article turns on the dual‐nature thesis. This thesis sets out the claim that law necessarily comprises both a real or factual dimension and an ideal or critical dimension. The dual‐nature thesis is incompatible with both exclusive legal positivism and inclusive legal positivism. It is also incompatible with variants of non‐positivism according to which legal validity is lost in all cases of moral defect or demerit (exclusive legal non‐positivism) or, alternatively, is affected in no way at all by moral defects or demerits (super‐inclusive legal non‐positivism). The dual nature of law is expressed, on the one hand, by the Radbruch formula, which says that extreme injustice is not law, and, on the other, by the correctness argument, which says that law's claim to correctness necessarily includes a claim to moral correctness. Thus, what the law is depends not only on social facts, but also on what the law ought to be.     

法律实证主义的问题意识

法律实证主义作为西方法哲学史上与自然法学派相对立的思想流派.始终饱受误解和质疑.法律实证主义的"问题意识"是深入领会其良苦用心和精神实质的关键.自然法学派与法律实证主义的法律观都具有批判与保守、灵活与随意、确定与僵化的两面性.法律实证主义以"形式正义"取代"实质正义",以"合法性"诠释"正当性",是对自然法的绝对性、抽象性、不确定性等形而上学固有缺陷深刻认识的结果,反映了法律实证主义深刻的问题意识.因之,法律实证主义在实践上具有更稳健、妥切、现实的品格.法律实证主义以特殊的方式理解和处理了正当性观念,它与自然法学派的关系与其说是本体论上的对立,不如说是认识论和方法论上的发展、补充和超越,由此二者才能共同支撑和维护西方法治文明的大厦.     

A Typological Reading of Prevailing Legal Theories

A classic debate in the history of philosophy is that between rationalists and empiricists concerning the “true” source of human knowledge. In legal philosophy this debate has been reflected in the classic opposition between natural law and legal positivist perspectives. Even the currently predominant inclusivist perspectives on the nature of law, such as inclusive legal positivism and inclusive legal non‐positivism, are not immune to such a dichotomy. In this paper I attempt to present an understanding of specific cognitive characteristics of prevailing legal theories from the perspective of the theory of psychological types as developed by Carl G. Jung.     

Beyond the ‘<Emphasis Type="Italic">Tomlinson</Emphasis> Trap’: Analysing the Effectiveness of Section 1 of the Compensation Act 2006

One of the intentions underpinning section 1 of the Compensation Act 2006 was to provide reassurance to individual volunteers, and voluntary organisations, involved in what the provision called ‘desirable activities’ and including sport. The perception was that such volunteers, motivated by an apprehension about their increased vulnerability to negligence liability, and as driven by a fear of a wider societal compensation culture, were engaging excessively in risk-averse behaviour to the detriment of such socially desirable activities. Academic commentary on section 1 of the Compensation Act 2006 has largely regarded the provision as unnecessary and doing little more than restating existing common law practice. This article argues otherwise and, on critically reviewing the emerging jurisprudence, posits the alternative view that section 1, in practice, affords an enhanced level of protection and safeguarding for individuals undertaking functions in connection with a desirable activity. Nonetheless, the occasionally idiosyncratic judicial interpretation given to term ‘desirable activity’, potentially compounded by recent enactment of the Social Action, Responsibility and Heroism Act 2015, remains problematic. Two points of interest will be used to inform this debate. First, an analysis of the then House of Lords’ decision in Tomlinson and its celebrated ‘balancing exercise’ when assessing reasonableness in the context of negligence liability. Second, a fuller analysis of the application of section 1 in the specific context of negligence actions relating to the coaching of sport where it is argued that the, albeit limited, jurisprudence might support the practical utility of a heightened evidential threshold of gross negligence.     

Trial by Slogan: Natural Law and Lex Iniusta Non Est Lex

Norman Kretzmann's recent analysis of the natural lawslogan ``lex iniusta non est lex' (an unjust law is nota law) demonstrates the coherence of the slogan andmakes a case for its practical value, but I shallargue that it also ends up showing that the sloganfails to mark any interesting conceptual or practicaldivision between natural law and legal positivistviews about the nature of law. I argue that this is ahappy result. The non-est-lex slogan has been used toexaggerate the extent of disagreement about the natureof law and has diverted critics of natural law theoryfrom recognizing that the main disagreement betweennatural lawyers and legal positivists centres ontheories of practical reason and how they affect ourunderstanding of the relationship between law andmorality. This extends the debate about the nature oflaw somewhat beyond the traditional boundaries ofphilosophy of law, but these boundaries are due inpart to the diversion created by debate over thenon-est-lex slogan. Recognizing that the non-est-lexslogan fails on its own to mark any interestingpractical or conceptual division between natural lawtheories and legal positivism should therefore focusand encourage debate on matters of genuine substancebetween these outlooks. The disagreement, however, mayturn out to be primarily metaphysical and explanatoryand not normative in nature.     

Neil MacCormick's Second Thoughts on Legal Reasoning and Legal Theory. A Defence of the Original View

This paper offers a diachronic reconstruction of MacCormick's theory of law and legal argumentation: In particular, two related points will be highlighted in which the difference between the perspective upheld in Legal Reasoning and Legal Theory and the later writings is particularly marked. The first point concerns MacCormick's gradual break with legal positivism, and more specifically the thesis that the implicit pretension to justice of law proves legal positivism false in all its different versions. The second point concerns MacCormick's acceptance of the one‐right‐answer thesis and the consequent thinning of the differences between MacCormick's theory of legal reasoning and that of Ronald Dworkin and of Robert Alexy. The intent, however, is not only to describe this change in MacCormick's thought, but also to attempt a defence of the original view that we find in Legal Reasoning and Legal Theory.     

Legal Positivism, Law's Normativity, and the Normative Force of Legal Justification

In this article, I distinguish between a moral and a strictly legal conception of legal normativity, and argue that legal positivists can account for law's normativity in the strictly legal but not in the moral sense, while pointing out that normativity in the former sense is of little interest, at least to lawyers. I add, however, that while the moral conception of law's normativity is to be preferred to the strictly legal conception from the rather narrow viewpoint of the study of law's normativity, it is less attractive than the latter from the broader viewpoint of the study of the nature of law. I then distinguish between a moral and a strictly legal conception of the normative force of legal justification, and argue that legal positivists may without contradiction embrace the moral conception, and that therefore the analysis of the normative force of legal justification need not be a problem for legal positivists. I conclude that, on the whole, we have reason to prefer legal positivism to natural law theory. I begin by introducing the subject of jurisprudence (section 1). I then introduce the natural law/legal positivism debate, suggesting that we ought to understand it as a debate about the proper way to explicate the concept of law (section 2). I proceed to argue that legal decision-making is a matter of applying legal norms to facts, and that syllogistic reasoning plays a prominent role in legal decision-making thus conceived (section 3). Having done that, I discuss law's normativity (section 4), the normative force of legal justification (section 5), and the relation between the former and the latter (section 6). I conclude with a critical comment on Joseph Raz' understanding of the question of law's normativity (appendix).     

Inclusive Legal Positivism,Legal Interpretation,and Value‐Judgments

In this paper I put forward some arguments in defence of inclusive legal positivism. The general thesis that I defend is that inclusive positivism represents a more fruitful and interesting research program than that proposed by exclusive positivism. I introduce two arguments connected with legal interpretation in favour of my thesis. However, my opinion is that inclusive positivism does not sufficiently succeed in estranging itself from the more traditional legal positivist conceptions. This is the case, for instance, with regard to the value‐freedom principle, which is commonly accepted by inclusive positivist scholars. In contrast with this approach, I try to show, in the concluding section, how a constructivistic version of inclusive positivism could legitimately acknowledge the presence of value‐judgments in the cognitive activities of jurists and legal theorists.