ANALYTICAL JURISPRUDENCE
Contents
Summaries of Legal Positivism Readings: Fagan’s Section .................................................................................................. 2
Hans Kelsen ‘The Pure Theory of Law and Analytical Jurisprudence’ (1941) ................................................................... 5
John Austin ‘The Province of Jurisprudence Determined’ (1832) .................................................................................. 10
HLA Hart ‘The Concept of Law’ (1961) ............................................................................................................................ 12
Joeseph Raz: Authority and the Source Thesis ............................................................................................................... 18
Dworkin: A Critique of Hart & Legal Positivism .............................................................................................................. 23
Section 2 [Khomotso] ......................................................................................................................................................... 27
Hart-Fuller Debate: Law and Morality ............................................................................................................................ 27
J Waldron – Positivism and Legal Morality ...................................................................................................................... 30
T.R.S Allan – Law as a Branch of Morality ....................................................................................................................... 33
, SUMMARIES OF LEGAL POSITIVISM READINGS: FAGAN’S SECTION
INTRO
1. Analytical jurisprudence
not concerned with morality. Rather it analyses the nature of law and legal entities.
2. Normative jurisprudence
the study of the law from a moral perspective and comprises two branches, which I will refer to as interpretive and
critical.
Interpretive jurisprudes seek to provide an account of the actual moral underpinnings or logic of current law. Thus, for
example, they might take up the question of why our criminal law punishes criminals.
critical branch of normative jurisprudence = Instead of attempting to describe the actual moral foundations of current
law, they want to know what, from a moral point of view, the law should be. Focuses rather on whether criminals should
be punished at all …
Normative jurisprudence deals with the moral foundations of the law, while analytical jurisprudence examines its
metaphysical foundations.
Fagan says he doesn’t know if he would classify it like this. Fagan says ….
o Analytical jurisprudence = aims to understand or explain or elucidate (the nature of) the practice of law or some
aspect of it.
o Normative jurisprudence = aims to evaluate or assess or judge the practice of law or some aspect of it as morally
good or bad, desirable or undesirable, legitimate or illegitimate, and so on. He would consequently see what Shapiro
calls ‘interpretive’ jurisprudence as falling within the sub-domain of analytical, rather than normative, jurisprudence.
Fagan says it is clear (and uncontroversial) that the theories and theoretical claims about the nature of law advanced by Kelsen,
Austin, Hart and Raz aim to explain (the practice of) law rather than to evaluate it. What Kelsen, Austin, Hart and Raz have to
say about the nature of law falls within the domain of analytical, rather than normative, jurisprudence.
The nature of law
We aren’t looking at what the word “law” actually means. We are inquiring into the typology of social institutions, not
into the semantics of terms. The explanation of the nature of law, he says, ‘cannot be equated with an analysis of the
meaning of any term’.
But this does not mean that a theory about the nature of law will not, and a theoretical claim about it may not, have
implications for our use of certain legal statements. It doesn’t mean that a theory or theoretical claim about the nature
of law will or may not have implications for the truth-conditions of such statements, that it will or may not determine
when and why such statements are true rather than false.
One way in which we can grasp the differences between theories and theoretical claims about the nature of law is by
comparing the truth-conditions for legal statements (or the implications for the nature of those truth-conditions) which
each yields.
Deontic statements or propositions:
E.g.: female adulterers ought to be stoned to death
Whether any of them is true or false depends on its content, that is, on what action it requires, forbids, or permits, from
or to whom, and in respect of whom. The truth or falsity of every one of these statements, and every other like them,
depends on the merit of its content: on whether it is good or bad for the person or persons from whom the action in
question is required, or to whom the action in question is forbidden or permitted, to perform it.
- By merit = moral merit
That the truth or falsity of deontic statements is merit-dependent is therefore to claim that it depends on morality, on
values, on moral or evaluative reasons. And it means that, in order to establish the truth or falsity of any of these
statements, we have to engage in moral or evaluative reasoning.
When a deontic statement is added/preceded by a legal operator it becomes a legal statement.
- e.g.: according to the law, female adulterers ought to be stoned to death
The truth of deontic statements generally, we saw, is content- and merit-dependent. What about legal statements?
all legal philosophers accept that the truth-conditions of legal statements are, at least to some degree, content- and
merit-independent.
,Why? Because they recognise that what the law (of this or that country) is necessarily depends, to some degree or in some
way, on what are sometimes called ‘social facts’: facts about what certain institutions or people have done and sometimes
also the beliefs or attitudes with which they did it. Facts about what certain institutions or people have ‘announced’,
‘practiced’, ‘invoked’, ‘enforced’, ‘endorsed’, ‘or otherwise engaged with’
Do legal philosophers have good reason to believe that what the law is must depend, to some degree or in some way, on
social facts of the described kind? YES. 3 reasons why.
If law did not depend on social facts, it would be hard to explain how law and morality could be distinct
that what the law is must depend on the described kind of social facts reflects our (again pre-philosophical)
understanding of law as something posited – by humans: that is, of law as a human creation or artefact.
were it not the case that law depended, to some extent and in some manner, on social facts of the described kinds,
we would not be able to make sense of our central political institutions and arrangements, and of the importance
which we attach to them.
Secondly, they disagree about whether what the law is depends exclusively on social facts and therefore also on whether
the truth-conditions of legal statements are wholly content- and merit-independent.
Sidenote from Fagan which we need to know: ‘source-based law’, and what we might call a ‘symbolic’ expression, namely
‘L(c)(t)p’. It means law the ‘existence and content [of which] can be identified by reference to social facts alone, without
resort to any evaluative argument’.
As for ‘L(c)(t)p’, it is just a short-hand for: It is the law of some or other country at some or other time that
p, where p stands for some or other deontic proposition
On the question whether what the law is depends exclusively on social facts, and therefore also on the question whether
the truth-conditions of legal statements are wholly content- and merit-independent, 3 views can be distinguished.
Hard positivist (Raz, Gardener and Fagan)
Endorse sources thesis (all law is source-based law)
What the law is always depends exclusively on social facts.
And (by necessary implication) all of the truth-conditions of L(c)(t)p are wholly content- and merit-
independent.
Soft positivist (Coleman and Hart)
Reject the sources thesis (some law is source based, not all)
What some of the law is always depends exclusively on social facts, but it is not the case that all of it
necessarily does so.
To the second, the soft positivist might answer: While some of the truth conditions of L(c)(t)p necessarily
must be content- and merit-independent, it could be the case that some are not
Dworkin
Rejects sources thesis
Rejects soft positivism
It may be that what some of the law is always depends exclusively on social facts, but it necessarily is
the case that not all of it does so.
To the second, he might answer: While some of the truth-conditions of L(c)(t)p necessarily must be
content- and merit-independent, it necessarily is the case that some are not
, Conclusion
3 final matters:
First, legal rules and their validity
Legal rules are not true or false, they are valid or invalid. Doesn’t make sense to ask about their truth conditions,
rather ask about their validity conditions
If it is the case that the validity-conditions of legal rules are all social facts, then it is also the case that the truth-
conditions of all statements about those rules are social facts. If the former are wholly content- and merit-
independent, then so are the latter.
Secondly, legal normativity
In sum, law is normative in so far as it does, or purports to, provide us with reasons for action which we did not
previously have or change the reasons for action which we did have, in so far as it tells us what we ought or may
do, and in so far as it imposes duties (or obligations) and confers rights upon us, or purports to do so.
to some extent, so the philosophers agree, whether we are legally required, or legally ought, or are under a
legal duty, to do or refrain from doing x does not depend on what x is and on whether doing it is a good or a bad
thing. Instead, it depends, at least in part, on whether x has been endorsed, or announced, or invoked, or
practiced by a particular institution (the legislature or a court) or a particular group of people (judges or the
population more generally).
And here we get to the nub of the problem of legal normativity. How can the mere fact that some person or body of
persons has told us to do or refrain from doing x – has endorsed, announced, invoked, or practiced a rule requiring
this of us – make it the case, or even help to make it the case, that we now have a reason or, worse still, a duty to
do so: regardless of what x is and whether doing it or not doing it is a good or a bad thing? What weird kind of a
reason or duty is this, which can be brought into existence, as if out of the air, by these kinds of acts by these kinds
of people? As Gardner puts it: ‘Legal norms … are special … in defying [the] default logic of norm-validation. How
on earth do they defy it? It is a matter of deep wonderment to many philosophers
Thirdly, natural law
Natural law and legal positivism are not actually completely opposed
At the centre of that caricature is the maxim: ‘Lex iniusta non est lex’ or ‘An unjust law is not law’. Natural lawyers, it
is often said, endorse this maxim. In fact, its endorsement is frequently taken to be natural law’s defining feature.
And, of course, it that were so, then natural law and legal positivism would be conflicting theories. But it is not true
that the natural law tradition is committed to this maxim.
Finnis rejects the lex iniusta non est lex maxim. Not only does Finnis develop a theory of natural law which does not
rely on this maxim, he also argues that the historic natural law tradition – going back to Plato, Aristotle, Augustine
and Aquinas – did not accord it importance either.
There is no reason why a natural lawyer could not adopt proposition (LP) which, you will recall, is the only proposition
upon which everyone in the legal positivist tradition agrees. In fact, there is no reason why a natural lawyer could
not adopt the even stronger sources thesis proposed by Raz and accepted by the so-called hard positivists
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Gardner identifies the following proposition as the distinctive (and only distinctive) proposition of ‘legal positivism’: ‘(LP) In
any legal system, whether a given norm is legally valid, and hence whether it forms part of the law of that system, depends
on its sources, not its merits.
Possibly the most pernicious myth of them all
Gardener says that people have misrepresented legal positivism a lot. And people have lumped them altogether a
lot, and that actually within legal positivism there are differing views.
Identifies 6 claims (‘myths’) which have been attributed to LP :
1. Law can be evaluated only according to its form and not the basis of its content
2.
Judges both can and should decide all cases before them only by applying the law, in accordance with LP and
sources thesis
Judges both can and should decide all cases before them without ever engaging in moral reasoning
3. If contrary to no2, then judges sometimes make new law the same way legislators do
4. Legal positivist are either textualists (interpretation of the law should never reach beyond the textual source of that
law) or originalists (it should be guided exclusively by the intentions of those who made that law) about legal
interpretation
5. There is no necessary connection between law and morality
Half myth: law has some built-in-merit so that even morally repugnant law still has some positive value
