Legal Postivism Versus Natural Law (original) (raw)

Chapter 1 - The Concept of Law

Baudouin Dupret, Positive Law from the Muslim World: Jurisprudence, History, Practices (Cambridge University Press), 2021

This chapter addresses the question of the concept of law and its analytical relevance. By mixing conceptual clarification and semantic probes, and by shifting its scrutiny towards the Western legal experience, it seeks to underscore the problematic nature of characterizing law as a universal concept. On the contrary, we intend to show that law, in the sense by which it is globally understood today, is the outcome of a contingent experience whose extension to other historical and cultural contexts has been achieved at a huge price: heuristic weakness, analytical vacuity, grammatical incoherence, pluralist dogmatism. We conduct this exploration of the concept of law in three stages. First, we examine works dealing with "legal pluralism" and "legalism" to identify the reasons why the term 'law', its conceptual extension, and the attribution of its predicative quality are problematic and badly reflect the gap that can exist between a 'legalistic way of thinking' about the world and the existence of law in its contemporary meaning. Second, we specifically address works dealing with 'Islamic law' and law in Muslim contexts to try to see what law can be at the margin, at what Herbert Hart nicely called its fringe of penumbra, but also what people make it into, often abusively. Third, we seek to outline the contours of a conceptual inquiry, delimiting its relevance, specifying its limits, taking advantage of its analytical razor, clearing the mist, opening the domain of grammar. We thus pave the way for a later examination of the historical ontology of the concept of law and for the ethnography of its practices. Uses and Abuses of the Concept of Law Let us start with concepts of law presented as alternatives to positivism. From the critique of several collections, we will review the notions of 'folk law', 'legal pluralism', and 'legalism', with the aim of tackling the conceptual issues they raise and the analytical dilution resulting from them. It will allow us to stress the contingency of the concept of law and the stalemate into which its extensive meanings lead us. Folk Law and Legal Pluralism Folk Law: Essays in the Theory and Practice of Lex Non Scripta is a kind of manifesto of the current of folk law and legal pluralism (Dundes Renteln & Dundes, 1994). It is emblematic of the stalemate into which the search for a universal concept of law leads us. While recognizing, as Gluckman does, that the term 'law' and its derivatives have various meanings (Gluckman, 1965: 227), most contributions are based on an implicit concept that allows us to describe the many historical and geographical experiences as instances of the same concept. In the same way, many contributions make the correct observation that the study of the constitutive elements of so-called 'primitive law' starts from the characteristic features of modern law and doctrine (Josselin de Jong, 1994: 111); or that the idea that the 'Common Law' is a set of rules constituting a system is closely associated with legal positivism and derives from the concept of any law in terms of the model of legislated law (Simpson, 1994: 122); or that the concept of law held by an English lawyer today is largely influenced by Austinian theory and its later positivist versions, like Kelsen's or Hart's, all of them tending to think of law as a system of rules emanating from a focal point at the top of a pyramidal structure (Hag Ali, 1994: 36). However, they do not draw the conclusions of this assessment, that is, that the very idea of a 'law' characterized as primitive, customary,

The Concept of Law, Sixty Years On

Kritike: An Online Journal of Philosophy, 2021

In 1961, H.L.A. Hart published his seminal work The Concept of Law, introducing what eventually became the most dominant, influential, but controversial, theory of law in the twentieth century. Not only did it revolutionize the way philosophy of law was done at the time, but it continues to raise fresh problems that puzzle even linguistic, moral, and political philosophers to this very day. The objective of this paper is twofold. The first is to survey four philosophical topics that were explored in The Concept of Law and the contemporary debates that have followed in its wake, and the second is to argue that while some of Hart's ideas have successfully withstood the tests of time and later critics, other ideas have not been as successful, but not without illuminating the path that legal philosophers must traverse in the twenty-first century. The paper has been divided into four parts. Part I ("Law and Method") shall explain the importance of the "internal point-of-view" to ongoing debates between descriptive and normative jurisprudence. Part II ("Law and Morality") shall explain how the rule of recognition revived the natural law/legal positivism debate, the result of which gave rise to the inclusive/exclusive legal positivism debate in turn. Part III ("Law and Language") shall discuss how Hart's insight into the "open texture" of language has created new problems about legal interpretation. Part IV ("Law and Obligation") shall discuss Hart's "practice theory of obligation" and how it has led modern writers to justify the duty to obey the law.

Philosophy of Law: Reply to Critics

Jerusalem Review of Legal Studies, 2014

A reply to critics tends to ensnare the author in a postscript version of the famous preface paradox: you feel under some rational pressure to defend everything you have written in the book, 1 and equally under rational pressure to acknowledge that some of what your critics say is true. Paradoxes are not easy to solve and I will not pretend that I can manage it here. I want to defend the arguments I have made in the book, but I also want to admit some mistakes and acknowledge the need for further clarifications and revisions. I am very grateful to the commentators for spending their time and effort on giving me this opportunity. Their comments raise serious concerns, and I hope to address most of them. The book forms part of the new Princeton Foundations of Contemporary Philosophy Series, edited by Scott Soames. The books in this series are meant to address a wide audience of philosophers and philosophy students who are assumed not to have any particular familiarity with the field the book covers, giving readers a sense of where the some of the main contemporary issues in that discipline lie, and what are the main arguments debated, while also making some original contribution to the field. The books in this series are certainly not meant to be state of the art accounts of the disciplines they cover; the editor urged us to make our own arguments and develop our own thoughts on the subjects we discuss, an encouragement I certainly welcomed. But it was not my intention to offer a new theory of law; I do not have one. Most commentators say that the book is a defense of exclusive legal positivism. I would not really call it that, but given the content of the book, I cannot complain that they mislabel the view. I certainly try to defend a view broadly within the legal positivist tradition. And, as I argue in chapter 4, I do tend to think of inclusive legal positivism as a bit of red herring. But my point in defending a certain version of legal positivism, combining insights and arguments from Kelsen, Hart, and Raz, with some of my previous work on social conventions, is not guided by the objective to defend "exclusive legal positivism"; as if there is a coherent, self-contained, view on the shelf rightly labeled thus, and the book just brings to the debate a collection of arguments in support of it. At least I really hope that this is not how the book is read.

The Concept of Law and Its Conceptions

Ratio Juris, 2006

In this paper, I make an attempt to look for a thin and general concept of law that, as far as possible, should be neutral to the more substantial views of legal moralism and legal positivism, so that it is acceptable from both points of view. With this aim in view, I shall begin with a few remarks on concept formation and name a list of necessary requirements on an appropriate concept of law. On this basis, I intend to discuss a number of contemporary legal theories in view to their respective interpretations of the concept of law. Finally, I want to propose a definition of law that not only satisfies the requirements of the concept of law, but is also general enough to be compatible with both camps of legal thinking.

Morality and Law: A Critical Examination of Legal Positivism and Natural Law Theory

At the heart of debate between philosophers of law, an answer to how morality enters in as a part of written law has been an ongoing discussion. Two different major approaches that philosophers of law take to this include legal positivism and natural law theorists. Natural law theorists and legal positivists hold two completely different standpoints that conflict with the latter: natural law theorists believe that morality lies at the heart of law, whereas legal positivists believe that the existence of law is one thing, while its goodness or badness another. H.L.A Hart, a legal positivist, and Ronald Dworkin, a natural law theorist, are two unforgettable names in the philosophical legal realm; these are two influential scholars who went to bat against one another publicly with their works about jurisprudence in the hope to prove the latter wrong. Dworkin decided to publicize his differing views and published an attack on Hart's book, The Concept of Law, stirring the pot to what became a legal debate that flourished for years – he said that Harts understanding of law as it is and law as it should be was an unacceptable theory due to the knowledge that law concerns much more than just facts. By publishing the essay, The Model of Rules, the debate between each man regarding his philosophical theory on law began.