Criteria Of Legal Validity Research Articles

Czy powrót ustawowego bezprawia?

Constitutional crisis confronts legal practice with philosophical problems that normally may seem abstract or even purely academic. Among those, there is a question of material (content-dependent) criteria of legal validity, namely whether legal norms may actually have any content and remain binding elements of the law. It becomes palpable due to the legislative initiatives to decriminalize some violations of law committed by governmental officials. Such regulation deserves discussion in the light of theoretical conceptions of the claim to correctness (justice, righteousness) as a necessary feature of each act of enacting or applying the law. Arguably, even weaker conception of such claim, relying on the correctness relative to the public morality reflected in the fundamental values and principles of the positive law, is sufficient to challenge the potential presumption of validity of such decriminalizing provisions entailed by their possible formally accurate enactment

A Hartian Account of Genuine Theoretical Disagreement

In Law’s Empire, Ronald Dworkin raised what he called a new objection to Hart’s positivist theory of law. Dworkin contended that Hartian legal positivism cannot account for the genuine possibility of theoretical disagreement in the law, because, according to the positivists, law reduces to a question about social facts. This means that if there is a question about what the criteria of legal validity are, it must be resolved by answers to empirical questions, like how in fact the officials are acting, and not theoretical questions. In response, Leiter and Shapiro proffer ways of defusing the problem for the positivist. Leiter questions the face value of theoretical disagreements by showing that the prototypical examples of theoretical disagreement are disingenuous or erroneous. Shapiro shows that the positivist can account for theoretical disagreement, by looking at competing interpretive methodologies, but answering the question this way requires sacrificing the conventionality thesis of Hartian legal positivism. In this piece, I set forth a new response on behalf of the Hartian legal positivist. Specifically, I contend that the Hartian legal positivist can respond to the problem of theoretical disagreement in a way that both vindicates the face value of theoretical disagreement and maintains its critical commitments, specifically the separability thesis, the social facts thesis, and the conventionality thesis. To do so, I contend that we must attend to the role of inference and the norms of reasoning in legal discourse. Consistent with the Hartian picture, participants in a theoretical disagreement can agree about all the ground facts about the law, but disagree about the grounds of the law because they arrive at their positions by differing legal inferences and reasoning.

H.L.A. Hart's secondary rules: what do ‘officials’ really think?

AbstractThe impact of H.L.A. Hart'sThe Concept of Lawon modern legal thinking is undisputed. But does it reflect the reality of the way British institutions work? InConcept,Hart argued, amongst other things, that one of two ‘minimum conditions necessary and sufficient for the existence of a legal system’ was that ‘its rules of recognition specifying the criteria of legal validity and its rules of change and adjudication must be effectively accepted as common public standards of official behaviour by its officials’. In this paper, we begin the process of testing that statement empirically. Specifically, we ask whether non-judicial UK officials have a uniform view of what the rules of recognition, change and adjudication are, and whether they uniformly take an internal point of view towards them (i.e. whether they accept the rules and do not merely obey them). By way of a pilot study, thirty non-judicial UK officials were interviewed. Those officials comprised currently serving and retired senior civil servants, senior military officials, chief constables and local authority chief executives. The findings of the pilot study are presented in this paper. They allow us to deduce that Hart's statement might well be an inaccurate and incomplete description of the modern British constitution, and to comment on the implications of that conclusion.

H.L.A. Hart's secondary rules: what do ‘officials’ really think?

The impact of H.L.A. Hart's The Concept of Law on modern legal thinking is undisputed. But does it reflect the reality of the way British institutions work? In Concept, Hart argued, amongst other things, that one of two ‘minimum conditions necessary and sufficient for the existence of a legal system’ was that ‘its rules of recognition specifying the criteria of legal validity and its rules of change and adjudication must be effectively accepted as common public standards of official behaviour by its officials’. In this paper, we begin the process of testing that statement empirically. Specifically, we ask whether non-judicial UK officials have a uniform view of what the rules of recognition, change and adjudication are, and whether they uniformly take an internal point of view towards them (i.e. whether they accept the rules and do not merely obey them). By way of a pilot study, thirty non-judicial UK officials were interviewed. Those officials comprised currently serving and retired senior civil servants, senior military officials, chief constables and local authority chief executives. The findings of the pilot study are presented in this paper. They allow us to deduce that Hart's statement might well be an inaccurate and incomplete description of the modern British constitution, and to comment on the implications of that conclusion.

El incorporacionismo entre la espada del realismo moral y la pared del positivismo excluyente

De acuerdo con Juan Carlos Bayón, el positivismo jurídico incluyente es inconsistente, por cuanto sus presupuestos alegadamente convencionalistas serían incompatibles con las consecuencias de la incorporación de principios morales como criterios de validez jurídica que esta corriente teórica asume como posibles. Concretamente, el positivismo incluyente enfrentaría un dilema: si sostiene que el derecho remite al juez a la moral positiva para la identificación de contenidos normativos, colapsa con la versión excluyente; si en cambio sostiene que el derecho remite al razonamiento moral sustantivo, se ve obligado a abandonar sus presupuestos convencionalistas, en favor del realismo moral. En este trabajo analizaré esta crítica de Bayón, e intentaré proponer un argumento con el cual afrontar dicho cuestionamiento.

The Reality of the British Constitution: H.L.A. Hart and What 'Officials' Really Think

In The Concept of Law, H.L.A. Hart argued that one of two 'minimum conditions necessary and sufficient for the existence of a legal system' was that 'its rules of recognition specifying the criteria of legal validity and its rules of change and adjudication must be effectively accepted as common public standards of official behaviour by its officials'. Those rules, his 'secondary rules', form a crucial part of Hart's theory that the way to understand law is as the union of primary and secondary rules. This paper sets out to test that claim as a matter of empirical fact. If one asks UK officials what they think the UK's rules of recognition, change and adjudication are, and whether they accept them as common public standards, what do they say? Instead of interviewing judges, whose official views are readily accessible in their judgments, we concentrated on high non-judicial officials - senior civil servants, including former Cabinet Secretaries, military officers, including former Chiefs of the Defence Staff, chief constables and chief executives of local authorities. A series of recent examples of UK constitutional rules coming under stress were put to interviewees, in particular the request by Admiral Sir Michael Boyce at the cusp of the Second Iraq War for authoritative advice on the legality of the war. Interviewees discussed their understanding of how one identified legal rules, how legal rules changed and how they were settled if there was disagreement. We found some consensus but also a great deal of divergence. We also found, at least in the Civil Service, a degree of willingness to defy the courts entirely incompatible with the existence of any straightforward Hartian 'internal point of view' towards the law, at least as the courts understand it. But we also found evidence not so much for lawlessness within the UK government as for the existence of a separate legal system, centering on the figure of the Attorney-General. One way of interpreting our evidence is that there is not just one British constitution, but three, one built around the perspective of the courts, one around the perspective of the Government and around the perspective of Parliament.

Legal Theory Lexicon 065: The Nature of Law

is the nature of This question has occupied center stage jurisprudence and philosophy of law in the modern era, and has been the central occupation of contemporary analytic jurisprudence. This entry in the Legal Theory Lexicon aims to give an overview of the What is Law? debate.Historically, the answer to the question, What is law?, is thought to have two competing answers. The classical answer is provided by natural law theory, which is frequently characterized as asserting that there is an essential relationship between law and morality or justice. The modern answer is provided by legal positivism, which, as developed by John Austin, asserted that law is the command of the sovereign backed by the threat of punishment.Contemporary debates over the nature of law focus on a revised set of positions. Legal positivism is represented by analytic legal positivists, like H.L.A. Hart, Joseph Raz, and Jules Coleman. The natural law tradition is defended by John Finnis. And a new position, interpretivism is represented by Ronald Dworkin.In some ways, the title of this Lexicon entry is misleading, because of our focus on the What is law? question as it has been approached by contemporary legal philosophers. There are other important perspectives on the nature of law that focus on law's functions rather than the the meaning of the concept or the criteria of legal validity. For example, the sociological tradition includes important work on the nature of law by Max Weber and Niklas Luhmann. These issues are discussed by Brian Tamanaha in the article cited in the Links section at the end of this entry.This Lexicon entry maps the territory of the What is Law? controversy, and provides introductory sketches of the major positions. As always, the Lexicon is written for law students, especially first-year law students, with an interest in legal theory.

Disagreeing about Disagreement in Law

Ronald Dworkin argues that disagreement in hard cases is ‘theoretical’ rather than empirical and of central importance to our understanding of law, showing ‘plain fact’ theories such as H. L. A. Hart’s sophisticated legal positivism to be false. The argument from theoretical disagreement (ATD) targets positivism’s commitment to idea that the criteria a norm must meet to be valid in a given jurisdiction are constituted by a practice of convergent behavior by legal officials. The ATD suggests that in hard cases there is no such pattern of convergent behavior. Positivists are divided over the force of the ATD. Much of this disagreement over the force of the ATD can be understood as disagreement over just what it is that legal officials disagreeing ‘theoretically’ are disagreeing about. Once the scope of empirical and theoretical disagreements are more accurately plotted, we will see that the actual disagreements that occur in hard cases are not ones which threaten a deeper and pervasive pattern of convergent behavior, one which focuses not upon rules specifying criteria of legal validity, but instead upon broad processes for making, interpreting, and applying law. Such an account remains positivist, relying on the social fact that there is such a consensus, but allows for considerable disagreement among legal officials deciding cases within such procedures.

The Prism of Rules

Most legal theorists, including almost all positivists and many others, take for granted or are implicitly committed to an assumption that is not an official part of positivism. The assumption is that the content of the law is determined by the contents of legally authoritative pronouncements. I call it the Pronouncement View (PV, for short). The kind of determination at issue here is constitutive, not epistemic. That is, PV concerns what makes the content of the law what it is, not how we ascertain the content of the law. PV is more of an organizing principle or core idea, than a precise doctrine. I have introduced PV in an unqualified form, but there are a variety of ways in which its claim could be moderated. For example, a qualified version of PV could hold that the contents of legally authoritative pronouncements play a central or predominant role in determining the content of the law. The debate between positivists and anti-positivists is often framed in a way that takes PV for granted. For example, one typical characterization takes the debate to concern whether laws must pass a moral test in order to be valid. The use of laws here betrays an assumption that the starting point is legally authoritative pronouncements. Given this starting point, if morality is relevant it will have to be as a way of screening the content of authoritative pronouncements. I suggest that the issue of whether a PV-based view of law is correct is more fundamental than the issue that divides legal positivists and anti-positivists, at least as the latter issue is commonly understood. For example, one common understanding of the latter issue is that positivists claim, and anti-positivists deny, that the criteria of legal validity - the criteria that determine whether a norm is legally valid - need not include moral facts. As will become clear, however, the picture of law presupposed by this way of framing the debate - according to which candidate norms qualify as legal norms by satisfying criteria of validity - is closely associated with PV and need not be accepted by non-PV-based views of law. PV leads to a characteristic set of concerns and problems, and yields a distinctive way of thinking about how law is supposed to operate. In this paper, I will offer an alternative to PV, which I call the Dependence View (DV, for short). I begin to develop the picture of law that it yields. The discussion throughout is exploratory and tentative. The goal is to sketch the alternative picture and identify problems and possible ways of developing it, not to refute the picture associated with PV.

The Judicial Community

The root of positivism is the idea that a legal system's criteria of legal validity have authoritative status just in virtue of facts, where social consist of the behavior, beliefs, dispositions, and attitudes of certain persons in the community whose legal system it is. John Austin's version of positivism treated the seat of command (or legislation) as the scene of the facts constitutive of law's authority, and habitual obedience as the relevant form of those facts. Modern positivists, H.L.A. Hart, have instead treated the scene of adjudication as the source, and following a rule as the form of those facts. But there are notorious problems with the conventionalist account of law's authority, central among which is that it makes mysterious the persistence of law's authority in circumstances of serious and pervasive disagreement. Taking up a proposal by Scott Shapiro and Jules Coleman, I propose a way of understanding the facts constitutive of a community's authoritative criteria of legality in terms of judicial collective action. This model of collective action grounds law's normativity socially, despite judicial disagreement, thus maintaining the insight of positivism.

All We Like Sheep

In an extreme case, … only officials might accept and use the system’s criteria of legal validity. The society in which this was so might be deplorably sheeplike; and the sheep might end in the slaughter-house. But there is little reason for thinking that it could not exist or for denying it the title of a legal system.The essence of legal positivism, wrote H.L.A. Hart, is a very simple contention: “[I]t is in no sense a necessary truth that laws reproduce or satisfy certain demands of morality” (185-86).It is tempting to treat this claim—which some have called “the separability thesis”—as a definitional truth about law, i.e., as a constraint on any adequate definition of the term “law.” On this understanding, the positivist maintains that one should not define “law" in a way that excludes some norms from the extension of this term simply because they do not reproduce or satisfy a particular moral demand. Similarly, on this understanding, one should not exclude a system of norms, S, from the extension of the term “legal system” on account of S’s failure to satisfy the demands of justice. Indeed, positivism entails not only that one should not exclude S on this ground, but also that the injustice of S is not even a reason for regarding S as a problematic or marginal or less-than-central case of “law.” The positivist holds that it is a mistake to build moral conditions into the definition of “law” in any way whatsoever.