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For The Defense Of Legal Positivism

Posted on:2006-12-20Degree:MasterType:Thesis
Country:ChinaCandidate:D H MaFull Text:PDF
GTID:2206360155466139Subject:Legal theory
Abstract/Summary:PDF Full Text Request
Like the Goldbach conjecture in mathematics, what is law is one of the most famous still unsolved problems in jurisprudence. Millions of lawyers devote their lives to trying to solve the question. According to natural law theory, whether a norm is legally valid depends on whether its content conforms to morality. No human laws are of any validity, if contrary to morality. According to legal positivism, there is no necessary relation between law and morality. The existence of law is one thing; its merit and demerit another. Whether it be or be not is one enquiry; whether it be or be not conformable to an assumed standard, is a different enquiry.Hart is the most influential legal positivist in 20th century, and Dworkin is the most famous anti-positivist. The Hart/Dworkin debate lasts for three decades. The core question is whether the rule of recognition can incorporate as criteria of legal validity conformity with morality.Hart claims that law is a system of rules, and the rule of recognition provides the criteria of legal validity. To say that a given rule is valid is to recognize it as passing all the tests provided by the rule of recognition and so as a rule of the system. As a social rule, the rule of recognition is shown in the law-identifying operations of the courts.Dworkin criticizes Hart in three respects. First, Dworkin claims that legal principles cannot be identified by criteria provided by a rule of recognition, namely, tests having to do with their content but with their pedigree .Unlike rules, the origin of legal principles lies not in a particular decision of some legislature or court, but in a sense of appropriateness developed in the profession and the public over time. Second, Dworkin claims that the rule of recognition is not based on a consensus of convention manifested in a group's conventional rules but based on a consensus of independent conviction manifested in the concurrent practices of a group. Third, Dworkin claims that Hart's positivism is a semantic theory. The rule of recognition cannot explain theoretical disagreement about the law. In summary, Dworkin concludes that the doctrine of a rule of recognition is mistaken and must be abandoned.Hart makes general comprehensive reply to Dworkin in his postscript. First, he acknowledges that his doctrine is of what has been called 'soft positivism' and the rule of recognition may incorporate as criteria of legal validity conformity with moral principles. But this is a contingent fact. Second the rule of recognition is in effect a form of judicial customary rule existing only if it is accepted and practiced in the law-identifying and law-applying operations of the courts. Third, Hart claims that Dworkin has misrepresented his form of legal positivism. So the semantic version of legal positivism which Dworkin has attributed to Hart is not Hart's.In response to Dworkin, positivism has been divided into two schools. One is called inclusive positivism; the other is called exclusive positivism. The former holds that morality is a criterion of legal validity in some systems is just a contingent fact, not a conceptual requirement of positivism's account of law. The content of a society's rule of recognition comes from the facts about official practice in deciding questions about legality. The latter holds that the criteria of legal validity the rule of recognition sets out must consist in plain facts about the sources or pedigree of the rule in question.Lawyers' debate about the rule of recognition is the modern version of what is law. We haven't found the last answer to the question, but the process of thinking deepens our thought.
Keywords/Search Tags:the rule of recognition, legal positivism, legal principles, theoretical disagreement, semantic sting, inclusive positivism, exclusive positivism
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