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There
exists a vital distinction between law exclusively and ultimately being
grounded in social fact. The former renders both unnecessary and inappropriate
the use of morality to determine what the law is (exclusive positivism) while
the latter afford morality some role in determining what the law is (though
such a role varies dramatically depending on whether natural law or legal
positivist analysis is taken). cm1 I
submit that morality does play a limited role in dealing with what Raz termed
an ‘unsettled case’ but ultimately a legal positivist approach most accurately
explains the notion of legal validity.

The labels of ‘natural law’ and ‘legal positivism’ prove
somewhat unhelp in analysing whether the law is ultimately grounded in social
fact. Excluding its purest form, positivism does provide morality with a
limited role to play. As such it is first necessary to prove the law is not
ultimately grounded in morality.

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Radbruch can be taken to represent advocating natural law in
its most extreme form, advocating that ‘Where there is not even an attempt at
justice, where equality, the core of justice, is deliberately betrayed in the
issuance of positive law, then the statute is not merely ‘flawed law’, it lacks
completely the very nature of law’ as such the Radbruch formula is capable of
denying ‘unjust law’ the status of law. Such an approach differs starkly from Finnis
who treats such unjust law as a defective or marginal case per the central case
analysis (never going as far as to deny it to the status of law outright’.
While the Radbruch formula was seemingly endorsed to a limited degree by German
Courts post WW2 (such as the disapplication of laws revoking German Jew’s
citizenship) it has faced stark criticism from academics such as Hart who warns
we must not allow morality to supplant the law. Hart argues that Rabruch placed
a gross overvaluation ‘of the importance of the bare fact that a rule may be
said to be a valid rule of law, as if this, once declared, was conclusive of
the final moral question: ‘Ought this rule of law to be obeyed?’. The Radbruch
rule while arguably appropriate in the context of a post-Nazi Germany becomes
seemingly redundant in a modern day municipal system.

As such our attention to academics who advocate a natural
law analysis in a less pure form. Finnis is one such academic who submits that
we understand the law from the point of view of a reasonable person disposed to
obey it. Finnis’ analysis holds that generally, laws are reasonably directed to
solving a community’s co-ordination problems for the sake of the common good.
While not in conflict with the submission that social fact plays a more crucial
role in the question of legal validity. From a purely methodological standpoint
the issue can be raised as to whether a theory built on generalizations can
adequately said to provide an answer to the question of legal validity. Such an
approach is questioned by Dickson who while not completely dismissive of
central case theory believes bringing in moral analysis too early. Instead he
advocates indirect evaluation a way of understanding features of what makes law
important in someone’s lives without passing evaluative judgement.  We must first acquire ‘an accurate and
explanatorily adequate account of what law is’ (its nature, the kinds of demands
it makes, role it seeks to play in our practical reasoning) … ‘Then we can go
on to morally evaluate law and consider e.g. when it is morally justified and
ought morally to be obeyed (and when it is not and ought to be appropriately
criticized and reformed, or perhaps resisted).’ As such under the central case
theory of Dickinson’s adaptation the question of morality in the analysis of
legal validity is seemingly secondary to social fact.

Dworkin another advocate of a ‘softer’ rendition of a
natural law on the advocates that law includes norms and legal principles that
justify these norms. He is critical of Hart’s exclusion of principles (covering
various norms or standards) from the account of a legal system consisting of
primary (duty imposing) and secondary (power conferring) rules. Dworkin distinguishes
such principles from laws on the ground that rules apply without leeway or
alternative whereas principles do not necessarily determine decisions even to
the cases to which they apply. Furthermore, principles are capable of having a
‘weight’ with it being capable of adding up the force of conflicting principles
to reach a decision in a case. Furthermore, judges make use of various
principles of interpretation when construing statute, taking ‘an internal point
of view toward these principles as formulating norms for decisions and
criticize others for not following them’. Such principles are referred to as
“legal principles” or “principles of law and as Dworkin submits,
are binding on judges.

Against the background of the above, Dworkin is critical of
the inadequacy of Hart’s positivist approach to legal validity in the form of
the rule of recognition (a secondary rule of recognition is accepted and used
for the identification of primary rules of obligation). The first criticism
levied at Hart is that the rule of recognition is incapable of using the
content of norms or principles as criterion given that a central tenant of
positivism is that laws are capable of identification by their pedigree or
origin. Given principles do not legally become enforceable by their pedigree
alone, they cannot be identified by the rule of recognition. In response to
this criticism, Hart explicitly recognises that moral content can be used as
criterion in some jurisdictions. Furthermore, similarities can be drawn between
the method through which Dworkin describes principles becoming legal and Hart’s
own account of social duty imposing laws.

Dworkin also criticises
the rule of recognition on the grounds that in scenario of a controversial
case, convergent practice is incapable of solving the problem and as such,
Judges will appeal to arguments for the moral superiority of one view over
another. In such a sense the rule of recognition must be a normative principle
as opposed to being based in social fact. Hart responds to such criticism on
the grounds simply that if judges make reference to morality in passing
judgement, then a social rule requires them to do so. Furthermore, even if
morality need be brought into the analysis this does not necessarily lead to a
normative principle given that a ‘person can view matters from the perspective
of those who take a moral internal point of view without endorsing that
view-point’. cm2 cm3 

As evidenced above Dworkin’s criticisms of Hart seemingly
fail and such we now turn to discuss the positivist approach to legal validity.

It
is submitted that social fact does play a predominant role in the question of
legal validity but the question remains in what form does this social fact
take? cm4 Austin
submits that the law is a command given by a sovereign to a subordinate backed
by a threat (the social fact in this scenario being the command and the
qualifications (issued by the sovereign) behind it are the social facts
required to establish legal validity). This is conception is convincingly disproved
by Hart on the grounds that Laws applying coercive force commonly applies to
those who enact is as well (seemingly a unique feature of law). Other varieties
of law conferring legal powers to adjudicate or legislate (public powers) or
vary legal relationships (private) that cannot be construed as orders backed by
threats, some legal rules differ from orders in mode of origin (not brought
into being by explicit prescription) and failed to account for continuity of
legislative authority. Furthermore, Hart draws an important distinction between
an obligation and being obliged to do something, dependant entirely whether an
internal (internal feeling as matter of moral or social obligation) or external
(focused purely on the coercive nature) analysis is taken.

As previously mentioned, Hart advocates the rule of
recognition, which specifies the criteria necessary for validity in a legal
system (where there exist multiple sources the criterion for identifying ranked
in in order of relative subordination and primacy). The Rule of Recognition is
a social rule which exists simple due to the fact it is practised. As has been
discussed there is room for an element of morality within Hart’s analysiscm5 ,
capable of forming of the criterion of the rule of recognition.

Nevertheless, it is submitted that Raz’s view of legal
positivism termed the ‘source thesis’ is to be preferred. Raz’s thesis states that
‘A jurisprudential theory is acceptable only if its tests for identifying the
content of the law and determining its existence depend exclusively on facts of
human behaviour capable of being described in value-neutral terms, and applied
without resort to moral argument’. Such an analysis is to be preferred for it
clearly draws a distinction between what the law and the evaluation of such
law. Furthermore, adhering to the social thesis eliminates investigator’s bias.
As such the social thesis provides a superior medium through which to address
the question of validity.

The only qualification to this strong positivist approach is
that of unsettled cases whereby ‘judges are thought to develop the law using
moral, social, and other non-legal argument’. 
Such an exception allows for the limited operation of morality where
mere social fact would be insufficient to determine the law.

To
conclude the law is ultimately grounded in social fact albeit not exclusively.
There exist cases whereby questions of morality must be asked when discussing
what the law is or ought to be. Nevertheless, in a majority of cases simple reference
to social fact is sufficient.

cm6 

 

 cm1Good.

 cm2

 cm3You
are only taking Dworkin’s argument regarding the existence of theoretical
disagreement. What about his main point about what justifies conventionalism
(the social thesis)? (i.e., his belief that a theory of law must account for
and justify state coercion).

 cm4Good

 cm5Only
of positive morality. That’s the only conceptual possibility of ‘inclusive’
legal positivism.

 cm6Very
good essay. You did understand the main ideas of the readings. However, it is
not clear to me what role critical (not merely positive) morality plays for you
in the grounds of law. Are you sure that you are a inclusive legal positivist?
Rethink your conclusion having in mind the positive/critical morality
distinction.  

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