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    Juris 5 - Legal Positivism and Normativism

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    Juris 5 - Legal Positivism and Normativism

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    Juris 5 - Legal Positivism and Normativism

    Uploaded by

    Lethabo Joy

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    © All Rights Reserved
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    Download as pptx, pdf, or txt
    of 20

    JURISPRUDENCE

    LECTURE 5
    LEGAL POSITIVISM
    Today’s Lecture
    LEGAL POSITIVSM AND AFRICAN KINSHIP SOCIETY
    ◦ Mbiti

    LEGAL POSITIVISM
    ◦ Austin’s “Command” Theory
    ◦ Hart’s Concept of Law

    NORMATIVISM
    ◦ Kelsen’s Pure Law Theory
    INTRODUCTION
    Having discussed the natural law theorists, it should be apparent that jurisprudence deals
    with the core features in all instances of the law.
    ◦ Natural lawyers ask what the law “ought” to be;
    ◦ Legal positivists are predominantly concerned with what the law “is”.

    It is important to note that the law is one of many systems of norms which regulate human
    behaviour.
    ◦ Examples?

    Legal positivism therefore attempts to derive the fundamental basis for what constitutes the
    “law”.
    AIM OF THIS SECTION
    The aim of this section will be to ask whether, in terms of legal positivist thought, there was
    “law” in traditional African societies.

    i.e. do the theories of Austin, Hart and Kelsen actually explain the fundamental essence of
    law in all circumstances and situations?
    THE NATURE OF TRADITIONAL
    AFRICAN SOCIETY
    Reading – Mbiti (page 21 of textbook) – Kenyan philosopher

    Traditional African Society organised based on kinship system.


    ◦ The extended family is the most basic unit of kinship societies;
    ◦ Kinship society entails that relationship is an indispensable feature of social organisation in Africa.
    ◦ This includes the relationship between the living human community, and those who have passed (ancestors)
    ◦ This mimics cosmic relationality and interdependence.
    ◦ Evaluative articulation of kinship system
    ◦ i.e. makes judgments about the relative value and significance of the kinship system, beyond merely describing
    what it consists in.
    ◦ 2.1. Kinship systems are instrumentally valuable
    ◦ The kinship system is valuable because it enables people to achieve certain desirable ends. (e.g. protection)
    ◦ Kinship systems have intrinsic value
    ◦ The basis for relationships that are neither dispensable or optional to human flourishing. (i.e. Ubuntu)
    KINSHIP AS A SYSTEM OF NORMS
    The kinship system is a system of norms that regulate how people behave.
    ◦ The kinship system regulates societal relationships and institutions.

    The criterion for determining which norms are valid


    ◦ Validity of norms in the kinship system is based upon the rationale offered for them. (i.e. do they
    promote and reinforce the kinship community)
    ◦ If the norm undermines societal relationships – may be disregarded under the kinship system.
    LEGAL POSITIVISM
    Legal positivists focus on determining what the law “is”.

    Generally, they do this by attempting to define the law in an empirical basis, and separating
    the law from extraneous factors, such as morality.

    Began as a reaction to natural law theory. Why?


    ◦ The rise of empiricism in the 18th century, combined with the “progress” of the Industrial Revolution.
    ◦ Premise: the validity of legal norms cannot be viewed as objective fact, but alter based on subjective
    viewpoints based upon morals; positive law is ascertainable without regard to subjective
    considerations.
    ◦ Therefore, positive law must be separate from morals.
    ◦ In short, positivists view the law as science.
    AUSTIN’S COMMAND THEORY
    John Austin (1790 – 1859) was an English legal
    theorist who is considered to have developed the
    main theories of positivism, in particular his
    command theory.

    We are going to spend a little time on Austin’s


    command theory and the critiques to it.

    We need to note that Austin’s positivist approach


    focuses on the observable characteristics of the law,
    and not any abstract conceptualisations (compare to
    Fuller’s “need” for communication)
    Give me all of
    your cash, or
    I’ll shoot you!
    Pay your taxes, or
    you will be jailed
    The Gunman Analogy
    Taken from HLA Hart’s Concept of Law, chapter 2 – describes Austin’s
    command theory by analogy
    Command and sanction – both the gunman and the queen have done
    this, only one is a “law”. Why?
    Hart describes 5 modifications to the gunman scenario that demonstrate
    the differences.
    Modification 1: Generality
    Many people issue commands. (E.g. your lecturer tells you to be at your
    lecture at 07:45)
    However, most commands are not general in nature.
    To become the basis for a law, a command must
    ◦ Invoke a general type of conduct; and
    ◦ Apply to a general class of persons
    Modification 2: Persistance
    For a command to be considered a law
    ◦ The operation of the command; and
    ◦ The threat of sanction should the command not be obeyed
    Not only on the execution of the command and threat, but continuously
    until the command is revoked.
    Modification 3: Habitual obedience
    “We must suppose that, whatever the motive, most of the orders [in a legal system] are more
    often obeyed by most of those effected.”

    In other words, the commands issued must be habitually obeyed by the general class of
    persons previously discussed.

    Note that habit here does not mean in the ordinary sense of the word
    ◦ It is not comparable to habitually going to the gym every evening.
    ◦ Merely denotes a pattern of compliance
    Modification 4: Supremacy
    The first three modifications deal with the order, the last two deal
    with the person giving the order.

    Throughout a country there could be a number of persons giving


    commands, backed by threats, which are habitually obeyed.
    ◦ Subordinate lawmakers E.g. MPs, Ministers, Premiers, Municipal
    councils

    In our scenario, the “Queen” habitually obeys no-one.


    ◦ her subordinate lawmakers are bound the statutory limits set by her
    and operate as her “agents”

    Per Austin, the person issuing the order should be sovereign, or


    supreme.
    Modification 5: External
    independence
    The “Queen” in our scenario is independent in that she does not habitually obey the
    commands of others.

    She further does not habitually obey her own command.


    Command theory

    ◦ Law is a command
    ◦ Given by a determinate common superior
    ◦ To whom the bulk of a society is in the habit of obedience and
    ◦ Is enforced by a sanction.
    ◦ (the sanction distinguishes a command that is law from a command
    that is not)
    Important concepts
    ◦ Positive law is distinguished from divine law – or law of God – only former relevant for JP.
    Therefore, positive law is est. by a sovereign. Capable of delegating authority to public officials, incl.
    judges, who then act obo the sovereign. A’s idea of a sovereign means that his model judges are
    restricted to law interpreting rather than law making.
    ◦ Positive law is a form of command – a command is distinguished from the other significations of
    desire, not by the style in which the desire is signified, but by the power and purpose of the
    commanding to inflict an evil or pain in case the desire be disregarded.
    ◦ The command must be backed by a sanction – ‘an enforcement of obedience’ (sanction can be
    ‘weak’ = nullity is a form of sanction)
    ◦ Positive law produces in the populace HABITUAL OBEDIENCE
    Critiques of command theory
    Kinship norms could not be law – (and also generally)?

    Reflexive rules (eg. law regarding corruption)

    Facilitative rules (eg. law regarding making a will)

    Enforcement of rules (eg. police force?)

    Even if social norm enforcement – you need a sovereign?! (what about South Africa or
    Kenya?)

    Reason for obedience? Example: ‘the gunman writ large’


    NEXT LECTURE
    Hart’s Concept of Law

    Normativism and Kelsen’s Pure Theory of Law

    Traditional Kinship Societies and Positivism

    Oladosu’s case for African positivism

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