Configuración y validación de una policy

Fuller’s The Law in Quest of Itself (1940) contains an exposition of the claims of legal positivism and natural law and suggests that for all persons associated with the law there is a choice to be made between these opposing and competing doctrines of legal thought. Natural law is described as ‘denying the possibility of a rigid separation of “is” and “ought”, and tolerating a confusion of them in legal discussion’. Legal positivism is described as

‘that direction of legal thought which insists on drawing a sharp distinction between “the law that is” and “the law that ought to be”’. Jurisprudential thought remains largely polarised in this area; bridges have been fabricated, but, in general, adherents of the two schools remain far apart. Fuller, a vigorous opponent of legal positivism, believes that it is vital that a choice be made, particularly in view of his contention that the positivists have lost sight of the very purposes of positivism (thereby falling into the error described by Nietzsche as ‘the commonest stupidity’

of forgetting what one set out to do).

In The Concept of Law (1961), Hart (see Chapter 11) enumerates five common usages of the word ‘positivism’ in Anglo-American jurisprudence:

• To describe the concept of law favoured by Austin and Bentham (see Chapters 6, 10) in which laws are perceived as the commands of superiors.

• To explain the view, as propounded by Kelsen (see Chapter 12) and others that there is no necessary link between morals and the law.

• To name the idea of analysis or study of meanings of legal concepts.

• To denote the view of a legal system as a ‘closed logical system’ in which decisions from pre-determined legal rules are made by logical means.

• To suggest the theory that moral judgments cannot be established, as can statements of fact, by any type of rational argument, or evidence or other proof.

For purposes of this chapter, legal positivism is considered as a view of law which takes into account the positive law only, ie, the judicial norms established by the authority of the State, to

8.1 The choice

8.2 Use of the term

‘legal positivism’

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the total exclusion of any concept of law as transcending the empirical reality of the existing legal system.

The word ‘positive’, as used in jurisprudence, is derived from positum, the past participle of ponere=to put. It refers to that which is formally laid down, or affirmed by man. Thus, Abelard (1079–

1142) wrote of ‘positive law’ as that instituted by men ‘for their honour or use’.

Sextus Empiricus (c 200 AD) taught that the laws of society were neither transcendent nor metaphysical: they were based on the facts of experience. The observation of phenomena could provide the basis for scientific investigation. Empiricism grew as a doctrine, holding that all knowledge of fact must be validated in sense experience or be inferred from propositions derived unambiguously from sense data. This doctrine stands in total opposition to metaphysics (described by Jaspers as ‘contemplation of the whole (the totality) and the absolute (the ultimate reality)’).

Locke (see Chapter 3) and Berkeley (1685–1753) taught the significance of interpreting reality through the senses. For Locke, the ultimate source of all ideas was sensation. Berkeley stressed that nature could only be perceived and analysed by man through his senses.

Hume (1711–1776) and Comte (1798–1857) rejected metaphysics completely. Their teachings paved the way for a systematic version of a positivist approach to problems of comprehension and analysis, which would be mirrored in the concepts of legal positivism.

Knowledge originated, according to Hume, solely in our sense impressions; what uniformity might be discovered in our perceptual experience is derived from the mind’s ‘associating qualities’. Our belief in cause and effect stems solely from our mental habits which are the product of repeated connections in the mind. The notion of cause and effect is the fundamental element in knowledge. Metaphysical explanations of reality which lack reasoning concerning quantity or number, or experimental reasoning concerning matters of fact and existence, are ‘nothing but sophistry and illusion’.

‘All the objects of human reason or enquiry may naturally be divided into two kinds, to whit, relations of ideas and matters of fact. Of the first kind are the sciences of geometry, algebra, and arithmetic, and, in short, every affirmation which is either intuitively or demonstratively certain… Propositions of this 8.3 Antecedents of

legal positivism

8.3.1 Philosophical positivism:

the early empiricists

8.3.2 Locke and Berkeley

8.4 Hume and Comte

8.4.1 Hume: the significance of sense impressions

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kind are discoverable by the mere operation of thought, without dependence on what is anywhere existent in the universe… Matters of fact are not ascertained in the same manner, nor is our evidence of their truth, however great, of a like nature. The contrary of every matter is still possible, because it can never imply a contradiction… All reasonings concerning matters of fact seem to be founded on the relation of cause and effect.’

The evolution of human thinking comprised, according to Comte, a movement in three stages. The first, ‘theological’, stage was characterised by explanations of phenomena couched in supernatural terms. The second, ‘metaphysical’, stage concentrated upon ‘ultimate ideas and principles’ as the explanation of reality. The third, and final, stage will involve a

‘positivist approach’ to reality and the discovery of systematic laws. A priori speculation (ie, that which is logically independent of experience) will be abandoned; knowledge will be acquired solely through scientific method based on observation.

‘In the positive stage, the human mind, recognising the possibility of arriving at absolute notions, renounces the quest for the origin and destiny of the universe, and the attempt to know the underlying causes of phenomena, and devotes itself to discovering, by means of a judicious combination of reason and observation, their actual laws, that is, their invariable relations of succession and similitude. The explanation of facts, thus reduced to their real terms, is henceforth nothing but the relation established between the various particular phenomena and a few general truths whose number the advances of science tend increasingly to diminish’ (Cours de philosophie positive (1839–45)).

Based upon the work of philosophers, such as Carnap and Ayer, this doctrine supplied an important component of legal positivism, as evident in the writings of Hart. Propositions and the use of words must be examined if reality is to be understood.

A sentence has literal significance if, and only if, it expresses something which is either tautologous or empirically verifiable.

‘A contract is characterised by consensus ad idem and the desire to create legal relations’ is, in this sense, tautologous.

‘Parliament can only commence its deliberations at the time appointed by the Queen’ is an empirically verifiable statement.

‘The phenomenon of contract represents an advance in Western civilisation’, is a ‘metaphysical assertion’ which does not satisfy the criteria of meaning set out by the logical positivists.

8.4.2 Comte: the law of the three stages

8.5 Logical positivism

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This doctrine carries within its principles and methodology many of the views favoured by the philosophical and logical positivists. It is, essentially, an aspect of analytical jurisprudence: it examines particular legal orders and generally utilises in its investigations the inductive method (ie, proceeding from observation of particular facts to generalisations concerning all such facts). It eschews, during its investigations, matters of ethics, social policies and morality. In Stone’s words, it is concerned primarily with ‘an analysis of legal terms, and an enquiry into the logical interrelations of legal propositions’. The search for ‘ultimate values’ is rejected. Law is seen as source-based, ie, the validity of legal norms is held to be derived from sources determined by the community’s rules and conventions.

Logical positivism involves a deliberate attempt to demonstrate the worthlessness of metaphysics, ie, those attempts to interpret the nature of reality in terms beyond the physical or experiential.

Metaphysical statements, by their nature and mode of expression, are cognitively meaningless, and metaphysical speculationis mere ‘pseudo-speculation’. ‘Metaphysicians …be-lieve that their sentences assert something, represent some state of affairs. Nevertheless, analysis shows that these sentences do not say anything, being instead only expressions of some emotional attitude’: Carnap. The object of all philosophy, according to the logical positivists, is the logical classification of thoughts. In principle, all knowledge can be expressed in statements of science.

It is of the essence of logical positivism that to understand a proposition is to know what would be the case in circumstances in which the proposition were true. One knows what one ‘means’ by assertion A as long as one knows how to discover whether A is true. Hence if there exists no procedure for verifying A, it is a

‘meaningless’ statement. (Students might wish to apply the

‘principle of verifiability’ to the following statements: (a) ‘There are 30 women only among a total of 510 circuit judges’; (b)

‘Discrimination on grounds of gender appears to characterise appointments to the bench’; (c) ‘Prejudiced attitudes may often constitute unconscious motives in those recommending appointments to the judiciary’.)

The positivist approach necessitates an objective investigation of the structure of the legal order so as to reveal its foundation.

Functions are studied, analysed and classified and legal concepts are constructed. Hence, the legal positivist seeks to answer questions, such as: What is the law? What are its sources? What are its functions in a given society? What is the 8.6 The essence of

legal positivism

8.6.1 The rejection of metaphysics

8.6.2 The principle of verifiablity

8.7 Methodology

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function of terms such as ‘ownership’, ‘possession’, in legal discourse? This approach determines the mode of investigation—clear delineation of the boundaries of enquiry and a concentration upon objective reality.

In Kelsen’s words: ‘The concept of law has no moral connotations whatsoever’. The positivist must set aside values and similar considerations during his investigation of law. A social statistician, for example, investigating the incidence of homelessness within a community must confine himself strictly to his terms of reference, leaving others to consider whatever moral issues may be involved. The jurist should act in a similar fashion.

Holmes (1841–1935) (see Chapter 18) illustrates in graphic style, in The Path of the Law (1897), the essence of the positivist approach: ‘You see how the vague circumference of the notion of “duty” shrinks and at the same time grows more precise when we wash it with cynical acid and expel everything except the object of our study, the operations of the law’. To understand, say, the legal concept of ‘duty’, demands concentration upon its essence and the removal of all

‘contaminating irrelevancies’. The moral significance of ‘duty’

is, for Holmes, irrelevant to a consideration of its ‘true meaning’.

This is not to suggest in any way that the legal positivist is uninterested in moral problems: this is demonstrably not so.

Legal positivism calls for a study of essential features only and a relegation of other matters to specialists, such as political scientists.

It is of the essence of legal positivism that positive law alone is considered to be ‘the law’. The judicial norms laid down by the State, case law, statute, regulations and other orders, constitute the basic material which is the foundation of juristic enquiry. The legal positivist will be aware of, but will ignore in principled fashion, questions of what the law ought to be.

Legal positivism follows Hume and his successors in declaring:

‘One cannot deduce validly “ought” from “is”.’ Normative statements cannot be inferred validly from merely factual statements. The very term ‘ought’ is not free from difficulties of interpretation arising from ambiguity. Consider its ‘meaning’

in statements such as: ‘You ought not to steal’; ‘If you kick this ball it ought to move’; ‘Those who drive dangerously ought to be punished according to law.’ (Carnap, a founder of the logical positivist movement, stated in an argument which was to achieve notoriety: ‘From the statement “killing is evil’ we

8.8 The exclusion of value considerations

8.8.1 Holmes’ view

8.9 Positive law and

‘the law’

8.10 ‘Is’ and ‘ought’

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cannot deduce any proposition about future experiences. Thus the statement is not verifiable and has no theoretical sense, and the same is true of all other value-statements’.)

The influence of legal positivist doctrine may be noted in the arguments of the following jurists.

Austin (see Chapter 10) in his The Province of Jurisprudence Determined (1832):

‘The existence of law is one thing: its merit or demerit is 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. This truth when formally announced as an abstract proposition is so simple and glaring that it seems idle to insist upon it.’

Kelsen (see Chapter 12) in his The General Theory of Law and State (1945):

‘Pure theory of law’ is so-called ‘because it only describes the law and attempts to eliminate from the object of the description everything that is not strictly law: its aim is to free the science of law from alien elements.’

Hart (see Chapter 11) in his The Concept of Law (1961):

‘The lawyer will regard this book as an essay in analytical jurisprudence, for it is concerned with the clarification of the general framework of legal thought, rather than with the criticism of law or legal policy.’

The doctrine of legal positivism has been attacked from all sides.

For some jurists it is a mere embodiment of gross error. Indeed, Adler (see Chapter 4) sees as an essential task for jurisprudence the demolition of positivism as a legal philosophy so as ‘to win the moral sceptic to the path of reason’. Fuller suggests that the doctrine is responsible for erecting barriers which have retarded man’s reason. The Humean foundations of positivism have been denounced as false, so that legal positivism is considered by many to be flawed basically.

The positivist approach is condemned as a mere search for facts without any unifying frame of reference. The positivist reply stresses that the search for facts is guided by the motive of classification and interpretation in order that general, even 8.11 Legal positivism

exemplified

8.11.2 Kelsen 8.11.1 Austin

8.11.3 Hart

8.12 Some general criticisms of legal positivism

8.12.1 A mere search for facts

Legal Positivism 85

universal, concepts might emerge. Without a basis of facts there can be no valid analysis of the legal concepts which should form the basis of disputation.

Law, argue the critics, can exist only within a wider social setting. It is a product of history, inextricably intertwined with man’s social needs, and reflecting social and religious mores.

‘Law is a product of human effort, and we risk absurdity if we try to describe it in disregard of what those who brought it into being were trying to do’: Fuller, in Anatomy of the Law (1967).

What is the value of a positivist analysis of, say, the Children Act 1989 or the Sunday Trading Act 1994, without a consideration of the community’s aims which produced this legislation? Fuller:

‘We must be sufficiently capable of putting ourselves in the position of those who drafted a rule to know what they thought “ought to be”. It is in the light of this “ought” that we must decide what the rule is.’

The positivist reply is that man’s history and society’s aspirations are of great importance, but their consideration belongs to the realm of investigation by the historian and the social scientist.

Only when law is freed, for purposes of enquiry, from its context does fundamental examination become possible.

The dictates of an absolute morality often bind and guide communities. It is because communities may share a deep concern for values that societies are coherent units, and legislation reflects that cohesion. Positivists reply by accepting the significance of ‘ought’, but stress that there are no absolute standards of morality. Standards change: consider, for example, variations in social (and legal) attitudes to incest, suicide, homosexuality. Investigation of the so-called ‘absolute of the ought’ is not always possible.

It is the ‘justice downgraded’ reproach which is levelled continuously against the legal positivists. The arbitrary division of law and morality, of law and concepts of ‘right’ and ‘justice’, can lead, it is argued, to acceptance of evil. If justice be relative, how important should it be in the affairs of mankind? Is it coincidence that the downgrading of justice as a concept (‘bourgeois nonsense’, ‘liberal decadence’) has accompanied the rise of totalitarian regimes? The positivist reply is firm.

Positivists do not advocate the acceptance of evil or injustice any more than, say, econometricians, in their study of the labour market, accept the evil of unemployment.

8.12.2 The exclusion of the wider context of law is fatal

8.12.3 ‘Ought’ in the law should not be ignored

8.12.4 Justice downgraded

8.13 The positivist reply

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Separation of the concept of justice from other phenomena in an investigation of law does not lead in any way to a rejection of its significance. In the event, many positivist jurists have played an important role in the history of social and political progress. Bentham’s work in the field of social progress is of historical significance. John Stuart Mill’s powerful advocacy of liberty, women’s rights, and constitutional reform, is well-known. (Nor is it correct to suggest by implication that the opponents of positivism are, invariably, supporters of liberty and justice. Del Vecchio’s apologia for Italian fascism is an example of natural-law doctrine, reduced to narrow certainties, placed at the service of despotism.)

The following points have been made.

Positivism has stressed the autonomy of the law, with the result that jurisprudence may be studied to advantage as a subject in its own right and not necessarily as an aspect of a ‘wider sociology’.

Positivism has emphasised rational investigation. It calls for a utilisation of the methodology of the social sciences and argues for the application of logical thought and empirical investigation in the pursuit of answers to general problems of law within society.

8.14 A comment on the contribution of legal positivism to jurisprudence