seminar 2- positivism

8/11/2019 Seminar 2- Positivism

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LL.M (2009/2010)

JURISPRUDENCE

GROUP 2 PRESENTATION

1. LUKA KIMARU

2. MARK GAKURU3. MUTUMA KIBANGA

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Lega P!"#$#%#"&

1. I'$!*+$#!'.

Interpretation of law during the middle ages (the period of international history covering

a millennium in the 5th century through 16th century) was strongly influenced by

theological considerations. The period from renaissance (the period generally associated

with the transition out of the middle ages) may be described as the metaphysical era in

legal philosophy. The majority of rulers in this period purported to derive their authority

from a higher authority. The idea of democracy had began to evolve and the need to

define law in more clear terms arose.

In the middle of the nineteenth century a strong countermovement against the

metaphysical tendencies of the preceding centuries set in. this countermovement was

called positivism. The basis of positivism had been prepared by the immense success

achieved in the domain of natural sciences during the first half of the nineteenth century.

This success brought about a strong temptation to apply the methods used in the natural

sciences to the realm of social sciences. Two main characteristics of the positivistic

approach were!

a) "nly what is tested and verified on the basis of sensory e#perience is considered.

b) $n almost contemptuous attitude is ta%en by the adherents of positivism towards

the development of previous philosophy. They regarded the majority of great

philosophers of &estern culture as metaphysicians and purveyors of nonsense.

'egal positivists hold that only positive law is law. ositive law means those juridical

norms which have been established by authority of the state. They insist on a strict

separation of positive law from ethics and social philosophy. ositivism as a scientific

attitude rejects speculation and see%s to confine itself to the data of e#perience.


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conspicuously in a jurisprudence of analytical type. A'a,$#+a -!"#$#%#"& ta%es as its

starting point a given legal order and distils from it by a predominantly inductive method.

:ertain fundamental notions and distinctions and comparing them to those of another

legal order to ascertain common elements.

2entham ohn =tuart ;ill (1,6-1,4) and >udolph von hering (1,1,-1,/) are

regarded as the *$##$a#a' -!"#$#%#"$". These belonged to a category of earlier thin%ers

who saw positive law as based on its utility value. 'ater philosophers including :omte

$ustin ?elsen (1,,1-1/4) and +art (1/-1//) loo%ed at law more as a command of

the sovereign and denied any ethical or moral content in law.

2. Te !#g#'a $#'e" #' $e e%e!-&e'$ ! -!"#$#%#"& a" a ega

$e!,

eremy 2entham (13, @ 1,4) was influenced in his writings by 0avid +ume (111 @

16) who was the founder of value grounded on the value e#periences of the common

man. Atilitarian as a philosophy flourished in 1/ th :entury *ngland. Its greatest

proponent was 2entham who proceeded from the preposition that nature had placed

man%ind under the governance of pleasure or pain. The good or evil of an action should

be measured by the 8uality of pain or pleasure resulting from it. 2entham defined utility

asB

Cthat principle which approves or disapproves of every action whatsoever

according to the tendency which it appears to have to augment or diminish the

happiness of the party whose interest is in 8uestion.D

=ee eremy 2entham in I'$!*+$#!' $! $e P#'+#-e" ! M!a" a' Leg#"a$#!'

("#ford 1/4 page ). Atilitarianism as a philosophy cannot be divorced from the

historical events that occurred at the material time. It was during this time that there was

the rise of nation states which were an#ious to assert their total independent in the new

age of economic e#pansion and to reject all notions of feudalism or moral interference by

the church. 2entham argued that the definition of law depended on its purpose. +e

argued that the business of government was to promote the happiness of the society by

furthering the enjoyment of pleasure and affording security against pain. +e e#plained

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that Cit is the greatest happiness of the greatest number that is the measure of right or

wrongD.

+e stated that the happiness of the society as a whole would be attained by four goals of

subsistence abundance e8uality and security for the citi


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2entham influenced J!' S$*a$ M# (104 5 163)who agreed with him that Cactions

are right in proportion as they tend to promote happiness! wrong as they tend to produce

the reverse of happinessD. +e insisted that the utilitarian doctrine of happiness was

altruistic rather than egoistic since its ideals was happiness of all concerned. ohn =tuart

;ill differed with 2entham on the concept of justice. 2entham subordinated justice to

the dictates of utility. ;ill on the other hand too% the position that whereas the standard

of justice should be grounded on utility its origins should be based on the impulse of self

defence and the feeling of sympathy. +e argued that the feeling of justice is the urge to

retaliate for a wrong on a generali


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herings philosophy of law was based on the concept of purpose! purpose is the creator

of the entire law and that there is no legal rule that does not owe its origin to practical

motive. +e stated that C'aw is the sum of the conditions of social life in the widest sense

of the term as secured by the power of the =tate through the means of e#ternal

compulsion.D +e viewed securing of the conditions of social life as the substantive aim

of the law. +e believed that the means and instrumentalities of the law whilst cannot be

uniformly secured should be adapted to the needs of the particular period and the state of

civili


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9irstly it was hard to spea% of there being a sovereign @ a person or entity that is

habitually obeyed but has no habit of obedience to any other person or entity. In most

modern governmental roles and institutions are subject to legal restraints. =econdly the

concept of a sovereign creates difficulty in e#plaining the continuity of lawB 9or when

someone new ta%es over that person has no history of being habitually obeyed. Thirdly

there is much that is significant within legal systems that is lost if one loo%s only to

commands bac%ed by threats or one treats all aspects of law as variations of commands

bac%ed by threats.

9rom +arts perspective the problem with $ustins approach to law and indeed with

most empirical approaches was that such approaches are unable to distinguish pure

power from institutions and rules accepted by the community unable to distinguish the

orders of terrorists from a legal system.+arts alternative view of law is grounded on his views of rules in particular on a view of

the difference between rules and habits. To an outside observer there may be no way to

distinguish someone acting in a particular way out of habit from her acting the same way

in compliance with a rule. &ith habits the statement of the behavior is nothing more

than a description. &ith a rule however the settlement can ta%e an additional roles! as an

e#planation a justification and a basis for critici


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for contract wills trusts etc and he contrasted rules that applied directly to citi


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system unless one understands how people who created the system or who

participate in the system perceive it.+arts argument is that whatever advantage a CscientificD approach might have it

simply is not ade8uate for a full understanding of law. 'aw is a social institution set

up to achieve certain human purposes and also guidance to citi


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=econdly +art was responding to the Gatural law theorists who argued that the way

judges decide difficult 8uestions showed that there was contrary to legal positivists

no conceptual separation between law and morality. To the point that rules by

themselves do not always determine the result of cases +arts response was that this

is sometimes true but that this occurs in only a relatively small number of cases.

3) The ;inimum :ontent of Gatural 'aw.

The te#t occurs in the conte#t of general discussion of the ways that law and

morality can be said to overlap (for e#ample the way that conventional moral beliefs

obviously affect the way that the law develops and the fact that ideas about how law

and society ought to effect how statutes in particular ambiguous statutes are

interpreted) in order to show what is not claimed by the assertion that there is no

necessary connection between law and morality.

+arts argument is that there are certain contingent facts of the human situation in

the present time. That we are all mortal and vulnerable that resources are limited

and that we are all dependant to some e#tent on other people. These facts are

contingent in that it is not impossible however unli%ely it may be that future

scientific developments might change these facts. $mong these +art speculated that

any legal or moral system that did not offer certain minimal protections (against

murder serious assault and theft) to at least a significant minority of the population

would not @ could not @ survive for very long.

This is not a conceptual point merely a prediction. *ven if one were to ta%e it as a

concession to the natural law theorists its a trivial one. 9or this does not reflect the

usual lines of disagreement between legal positivists and natural law theorists.

$dvocates of natural law argue for a moral test for legal validity. ;ost natural law

theorists would want the right to declare as Cnot lawD legal systems that wouldotherwise easily pass the minimal standards of +art discussion.

J!"e- Ra (:.1939 )

(Inclusive Hersus *#clusive 'egal ositivism)

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The debate between the two camps involves a difference in interpreting or elaborating

one central point of legal positivism @ that there is no necessary or C:onceptualD

connection between law and morality.

E;+*"#%e ega -!"#$#%#"&states that the e#istence and content of every law is fully

determined by social sources. I'+*"#%e ega -!"#$#%#"&interprets the separation of law

and morality differently arguing that while there is no necessary moral content to a legal

rule or a legal system a particular legal system may by conventional rule ma%e moral

criteria necessary or sufficient for validity in that system. $n e#ample of inclusive legal

positivism is in the A.=.$ where constitution based udicial review of legislation

re8uires or authoria< and

is based on an asserted relationship between law and authority. >aa< says that moral reasoning has no part in saying how judges should decide cases

according to law.

) It is in the nature of law that the legal system claims legitimate authority. In >aeasons to

e#clude a consideration from being the ground for a decision.

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a'" Ke"e' (1,,1-1/4).

ure Theory of 'aw

+ans ?elsen was an $ustrian legal theorist who spent part of his life in the Anited =tates

having escaped *urope at the time of +itler.

Te P*e Te!, ! La7

$ccording to ?elsen the theory was CpureD because it only describes the law and

attempts to eliminate from the object or this description everything that is not strictly

C'awD. ;oral judgments political biases and sociological conclusions were all to be

pushed aside as improper for a C=cientific Cdescription of the social institution of law.

There are two basic starting points for understanding ?elsens approach to legal theory.

9irst normative claims @ arguments for how one ought to act or for how things ought to

be @ can be grounded only on (justified by) other normative claims. This is the argument

usually attributed to 0avid +ume that one cannot derive a normative conclusion from

purely factual premises. In other words a purely factual description of a situation will

never be sufficient by itself to justify a conclusion that something ought (morally) to be

done. "ne can only justify such conclusion by first accepting or inserting a moral

premise. =econdly such lines of justification must necessarily come to an end at some

point. In day-to-day discussions each (normative) argument put forward is based on

(justified by) some more general or more basic argument. &e tend to forget that if we

loo% closely enough at the chain of arguments in favour of a particular position we

eventually come to an argument that is not justified by some other argument and the

validity of this final argument can only be based on its being tacitly or e#plicitly accepted

(accepted Con faithD).

?elsens argument was that there is a foundational argument implied (CpresupposedD) by

legal statements just as there is a foundational argument implied by religious statements.

In more technical language ?elsen applied a Cneo-?antianD (ideas of Immanuel ?ant)

approach to legal theory! an approach based on aspects or ?ants theory of %nowledge in

particular ?ants transcendental arguments.

To understand the theory we have to loo% at the normative chain of justification. "ne

starts will some simple legal-normative statement e.g. Cone cannot par% here (it is illegal

to do soD). If the person ma%ing this statement was as%ed why it was so she would

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probably note that this regulation was validly promulgated by some city council judge or

administrator. If the 8uestioner pushes further the chain could be followed bac% e.g. that

the administrator was authori


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does not impose a sanction in this situation you are authorionald 0wor%in wor% has established a third alternative to legal positivism and natural

law theory @ $n interpretive theory of law. 0wor%in early writings challenged a particular

version of legal positivism a view which saw law as being comprised entirely of rules

and judges as having discretion in their decision ma%ing where the dispute before them

was not covered by an e#isting rule. 0wor%in offered an alternative vision of law in

which the resources for resolving disputes Caccording to lawD were more numerous and

varied and the process of determining what the law re8uired in a particular case more

subtle.

0wor%ins argued that along with rules legal systems also contain principles. 'egal

principles are moral propositions that are stated in or implied by past official acts (e.g.

=tatutes udicial decisions and constitutional provisions) while rules act in an Call or

nothingD way (if a rule applies it conclusive it decides the case) principles can apply to a

case without being dispositive.

2ecause there are (numerous) principles as well as rules there will be few if any

occasions where the law Crun outD and judges must decide the case without legal

guidance but legal determinacy might seem to be undermined by the abundance of

sometimes contrary material. Ander 0wor%ins approach udges consider a variety of

theories regarding what the law re8uires in the area in 8uestion rejecting those that do not

ade8uately CfitD past official actions. $mong the theories that ade8uately CfitD the judge

chooses the one which best combines CfitD and moral value ma%ing the law the best it

can be.

C!'"$*+$#%e I'$e-e$a$#!' (La$e 7!")

In La7=" E&-#e 0wor%ins argued that Clegal claimsD are interpretive judgments and

therefore combine bac%ward and forward loo%ing elements they interpret contemporary

legal practices as an unfolding narrativeD $ccording to 0wor%in every time a judge is

confronted with a legal problem he or she should construct a theory of what the law is.

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That theory must ade8uately fit the relevant past Eovernmental actions (legislative

enactments and judicial decisions) while ma%ing the law the best it can be. 2oth law (as a

practice) and legal theory are best understood as processes of Cconstructive

interpretationB interpretation that ma%es its object the best it can be. :onstructive

interpretation depends upon being able to assign a distinctive value or purpose to the

object of interpretation. It is that value or purpose which serves as the criterion for

determining whether one interpretation of the object is better or worse than an alternative.

9or the constructive interpretation of law 0wor%in states that the purpose of law is to

constrain or justify the e#ercise of governmental power.

The past actions of officials whether judges deciding cases and giving reasons for their

decisions or legislators are passing statutes are the data to be interpreted constructively. In

ma%ing the law or an area of the law the best it can be the criterion is CfitD and moral

value. 9or some legal 8uestions the answer may seem easy because only one theory

shows ade8uate CfitD. +owever where the law is unsettled or inconsistent or where legal

8uestions are novel there will be alternative theories with ade8uate CfitD. $mong these

some will do better on CfitD others better on moral value. In ma%ing comparisons among

alternative theories the relative weighs of CfitD and moral value will itself be an

interpretive 8uestion and will vary from one legal area to another. 0wor%ing also writes

on C(political) integrityD the view that judges should decide cases in a way which ma%es

the law more coherent preferring interpretations which ma%e the law more li%e the

product of a single moral vision. 0wor%in wrote

Cudges who accept the interpretive ideal of integrity decide hard cases by trying

to find in some coherent set of principles about peoples rights and duties the best

constructive interpretation of the political structure and the legal doctrine of their

community. The interpretation of the law should to the e#tent possible e#press a

coherent conception of justice and fairnessD

0wor%ins writings can be seen as an attempt to come to terms with aspects of legal

practice that are not easily e#plained within the conte#t of legal positivism e.g.

1) The fact that participants in the legal system argue over even the most basic aspects of

the way the system wor%s (arguments over the correct way to interpret ambiguous

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statutes and over how one should apply constitutional provisions to new legal 8uestions)

not just over peripheral matters on the application of rules to borderline cases.

) *ven in the hardest of hard cases the lawyers and judges in the case spea% as if there

were a uni8ue correct answer which the judge has a duty to discover and

4) In landmar% cases where the law seems on the surface to have changed radically both

the judges and commentators often spea% of the new rule having Calready been presentD

or the way law Cwor%s itself pureD

If as%ed Cwhat is the law regarding economic recovery for nervous distressD it is 8uite

possible that the lawyer will not be able to offer an authoritative legal source that spea%s

directly to the specific problem posed the 8uestion may be unsettled in laws. It may be

that the lawyer can point to certain statutes that have been made by courts at various

levels on related matters and writings of commentators suggesting that future decisions

on this 8uestion come out one way rather than another but it may be that none these items

directly and conclusively answers the 8uestion posed. The lawyer must go through a

certain %ind of reasoning process deriving an answer from the various materials. This is a

0wor%in act of interpretation. $nother e#ample is where there seem to be authoritative

legal sources directly on a point e.g. a lawyer may contend that the appellate court had

rendered a decision on an issue. Is that the end of the matter or there is need for

interpretationF

$ccording to 0wor%in a s%illed advocate could still argue loo%ing at all the relevant past

legal decisions that the appellate court decision was mista%en and should be revised or

overturned or that the decision was too broad and it will probably later be limited to a few

situations.

The interpretive approach has the advantage of reflecting and being able to account for

the way the law or certain areas of the law are subject to change and re-characteri


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appropriate prescription if one is a judge within the legal system. +owever why would

one ta%e the same perspective if one were merely a citi


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rights. The criticism of this view is it would seemingly allow all rights to be waived.

$nother criticisms of the theory focuses on a procedural problem. The substantive right

is one thing and having a right is to claim another.

The Interest (2enefit) theory argues that the purpose of rights is not to protect individual

assertions but certain interests. >ights are said to be benefits secured for persons by rules

regulating relationships. $ particular strength of the interest theory is that it covers all

types of rights (the so called socio-economic rights such as health care education a

minimum wage) as well as liberties

a$>?*e e:a$e (Te 'a$*a#"$" %e"*" $e -!"#$#%#"$" e:a$e)

The attempt to separate law and morality came under criticism particularly by Eerman

thin%ers. G*"$a% Ra:*+was one such jurist. rior to the ndworld war >adbruch

was a positivist and held firmly that resistance to law was a matter for personal

conscience to be thought out by the individual as a moral problem and the validity of a

law could not be disapproved by showing that its re8uirements were morally evil or even

by showing that the effect of compliance with the law would be more evil than the effect

of disobedience.

>adbruch after the war concluded that the Gaadbruchs conception of law as containing in itself the essential moral principle of

humanitarianism was applied in practice in Eermany in the trials of some war criminals.

The court for e#ample on thuly 1/3/ while delivering a judgment against a woman

who had applied a Ga


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"ne of the choices available to the court was to uphold the law as it was and let the

woman go unpunished. It is easy to ta%e the position that this would have been a bad

thing to do. The other option would have been to introduce a retrospective criminal law to

enable the court punish the woman. This option would have meant breaching a cardinally

important principle of criminal law that might have set a dangerous precedent. It means

therefore that in punishing the woman a choice had to be made between two evils

leaving her unpunished or sacrificing a precious principle of morality endorsed by most

legal systems.

a$thought that the vice of the use of the principle that at certain limiting points what

is immoral cannot be law or lawful is that it will serve to cloa% the true nature of the

problems with which we are faced and will encourage optimism that all the values wecherish will fit into a single system that none of them has to be compromised to

accommodate another.

?*erejected the positivists view of law as being a one way projection of authority by

a sovereign. +e believed that this approach missed the need for cooperation between the

authority and the citi


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ositivism as a theory of law has enabled the study of law as a scientific concept. It has

enabled the identification of elements of what constitutes law in any legal system. The

proponents of positivism have argued that it is possible to define what law is shorn of its

origins morals and sociological content. ositivism as a theory determines the validity

of law on the formal criteria without any other input li%e morality and ethics. It is this

thrust of the positivist argument that to criticism of their definition of what is law. The

following are some of the criticism of positivism as a legal theoryB

(i) It has been argued that the essence of what constitutes law is not dependent on

its formal validity but on its moral content i.e. the law is not valid just because

it fulfils certain formal criteria as posited by positivist. If that were the case

then the Ga


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beD lies solely in the fact that the former has passed one or other media which

alone regulates the use of the label ClawD.

(vii) The positivists cannot deny that judge made laws (precedent) and other ethical

considerations influence the judges and legislators in the determination what

constitutes law.

(viii) ositivists admit that morals and other ideals are constantly wor%ing to shape

the content of the law. The naturalists ac%nowledge the need of positivism as

a guarantee of certainty and hence justice. In that sense natural law and

positivism are largely complementary.

(i#) The positivist obsession with what CisD in defining law confuses the formal

analysis of what constitutes law with the historical and functional analysis of

law. In this regard it is difficult to study what constitutes law and understand

what law is without studying the history and the function. 9or it to be

understood law must be put in conte#t of their origin and influence of the

past.

(#) :oncepts can only be understood with reference to the way in which they are

used and the ends which they serve all of which import social morals and

other considerations.

(#i) The separation of CisD and CoughtD is therefore confined to means of

identifying ClawD and at any given moment in time in regard to the criteria of

its validity.

(#ii) The division of CanalyticalD and CfunctionalD basis of studying of what is law

does not ultimately yield any certainty of what the law is. It leaves out many

aspects that has come to be understood as constituting law.

(#iii) In its postulates positivism in attempting to define what the law CisD has

become another theory of defining law. It has concepts which distinguish it

from other theories of law. Its approach to what is considered law is now one

of the method in which the study of jurisprudence is founded.

8. C!'+*"#!'.

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It may be stated that positivism has had a practical effect on the laws made by man over

the years. 9or e#ample 2enthams thin%ing opened doors for state intervention and social

reform and certain pieces of legislation which were favored by 2entham and his disciples

were enacted. The oor $ct of 1,43 was one such legislation. roposals for improvement

of the law were realiadbruch that positive law aided the

Ga

seminar 2- positivism

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