Norm and Nature: The Movements of Legal Thought

Norm and Nature: The Movements of Legal Thought

Norm and Nature: The Movements of Legal Thought

Norm and Nature: The Movements of Legal Thought

Synopsis

Is the nature of law to be formal procedure or to embody substantive value? This work deals with the traditional conflict in legal philosophy between positivistic and anti-positivistic theories of law. It examines the conflict with respect to seven central issues in legal philosophy--law as a reason for action, law and authority, the internal point of view to law, the acceptance of law, discretion and principle, interpretation and semantics, and law and the common good. This work argues that although this conflict cannot be resolved, the true nature of law is revealed--not obscured--by this perennial situation.

Excerpt

Legal positivism in the last thirty-odd years has not defended simple positivism. Recent positivist writings have been philosophically more technical and sensitive. To put it succinctly, simple positivism has been replaced by sophisticated positivism. In this Part I lay out sophisticated positivism, as the development of lines of thought which began in simple positivism. We begin as before with law as a reason for action.

Simple positivism's conception of the way that laws provide reasons for action did not fare well in a comparison with rule- scepticism (Chapter 1.2 above). Given that one had reason to obey the law only if one would be visited with evil if one did not comply, it was of little additional significance that the evil emanated from an institutional source, the sovereign. Simple positivism looked at the law purely instrumentally, and so regarded the fact that something was required or prohibited by law as but one reason to be weighed in the balance of reasons. Simple positivism as much as legal realism based legal reasoning on a 'bad man's' view of the law.

The first attempt by sophisticated positivism to avoid such a mistake lies in Hart's distinction between laws as obligation- imposing rules requiring the internal point of view and threats as obliging obedience through coercion (The Concept of Law, 80-1). The point is not to deny the bad man his view of the law for his part; if he internalized the law's demands and accepted them as legitimate, then in all likelihood he would not be 'bad'--cases of iniquitous legal systems apart. The point is to have legal theory not take the bad man's view of the law as paradigmatic for the law's status in practical reasoning. Rather, law cannot be understood without attention being paid to the point of view of those who deem law to present a genuine reason for action of a non-coercive . . .

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