What is positive law? The Command Theory (Bentham, Austin) The Social Convention Theory (Kelsen, Hart)

Jeremy Bentham Principle of utility: Maximize good “... the greatest happiness of the whole community, ought to be the end or object of pursuit. . . . The right and proper end of government in every political community, is the greatest happiness of all the individuals of which it is composed, say, in other words, the greatest happiness of the greatest number.”

Bentham’s Definition “as assemblage of signs declarative of a volition conceived or adopted by the sovereign in a state, concerning the conduct to be observed in a certain case by a certain person or class of persons, who in the case in question are or are supposed to be subject to his power: such volition trusting for its accomplishment to the expectation of certain events which it is intended such declaration should upon occasion be a means of bringing to pass, and the prospect of which it is intended should act as a motive upon those whose conduct is in question.”

Austin’s Definition Legal Positivism: “The existence of law is one thing; its merit or demerit is another. Whether it be or be not is one enquiry; whether it be or be not conformable to an assumed standard, is a different enquiry. A law, which actually exists, is a law, though we happen to dislike it, or though it vary from the text, by which we regulate our approbation and disapprobation.”

Bentham/Austin Command Theory X is the superior of Y if and only if Y is in the habit of obeying X, and not vice versa.

The Sovereign A collection S of human beings constitutes an independent political society just in case there is one member X (or some compact body X of members) of S that is the superior of all of the other members of S, and there is no human being Y outside of S who is the superior of X. In such a case, X is called the sovereign of society S.

Commands A command from X to Y is the expression, in words or actions, of the desire of X that Y act in a certain way, backed up by a stated or implied threat to impose some penalty on Y if Y does not comply.

General Commands A general command is a command that is issued to an entire class of individuals and that is intended to stand for an indefinite period, until revoked by its issuer.

Positive Law A positive law is a general command issued by the sovereign of an independent political society to some or all the members of that society.

Some problems with the command theory. The theory applies clearly to an absolute monarchy, but is much less clear when applied to a society where some group is the sovereign. What exactly does it mean to obey a group? Can a group issue commands (in Austin's sense) -- can a group share a single desire?

More problems H. L. A. Hart argues that the command theory cannot distinguish between a legitimate government and an armed robber ("give me your money or else"). The "Gun Man" objection. Parliamentary or constitutional law, laws governing the actions of the sovereign, do not count as law at all.

More problems The command theory fails to capture the normative aspect of law: “Austin's theory is not a theory of the Rule of Law: of government subject to law. It is a theory of the rule of men: of government using law as an instrument of power. Such a view may be considered realistic or merely cynical.” Some laws do not seem to command: e.g., those covering contracts and wills

Conventionalist Versions of Legal Positivism H. L. A. Hart (Oxford) Hans Kelsen (Vienna, UCLA)

Law as a System of Rules Laws constitute a hierarchical system of rules. Primary rules are like Austin's commands, Secondary rules concern how primary rules are recognized as valid, changed, applied to particular cases, and enforced.

Legal Validity A law is valid or binding if it belongs to a system of laws that is in force in a particular society. The validity of a system depends on the validity of its most fundamental secondary rules: “Grundnorm” (Kelsen) Ultimate rules of recognition (Hart)

Validity of Grundnorms It is generally followed, and Most people accept it as valid/binding, i.e., they follow it because they believe it is valid, and they criticize or find fault with those who deviate.

The “Internal Perspective” Legal theory involves taking the "internal perspective" of one who accepts a given system as valid. This distinguishes law from sociology, which always takes the "external perspective" of the objective scientist.

Some Philosophical Problems Reduces law to Sociology? Is there a vicious circularity in definition of validity? What sort of thing is a rule? What is it to “follow” or “accept” a rule?

Does Law Reduce to Sociology? The validity of a system of laws seems, on their account, to be a matter of sociological fact: which system (which Grundnorms) to most people treat as valid? This threatens to collapse their distinction between the disciplines of law and sociology.

A Circular Definition? Validity is defined in terms of what most people believe to be valid. If we don't already understand what legal validity means, we can't understand their definition.

A Circular Definition? A law is valid if it is part of a valid system of laws. A system of laws is valid if it rests on a valid Grundnorm. A Grundnorm is valid if people believe it to be valid. The majority can never be wrong about the validity of laws?

What are Rules (Conventions)? It can't be a mere pattern of behavior, since that leaves no room for the possibility of someone deviating from the norm or breaking the rule. It can't be a mere linguistic entity, like a sentence or statement, since these must be interpreted (by a linguistic or semantic rule).

What are Rules (Conventions)? Legal positivism seems to have trouble accounting for the normative force of law. Why should habits of obedience or sociological facts about belief bind someone to act? Alternatives: theories that make a place for normative aspects of law.

Two Alternatives to Legal Positivism Legal Realism (Oliver Wendell Holmes, Jr., Benjamin Cardozo, Jerome Frank): law is indeterminate, an instrument to social good Natural Law Theory (Aristotle, Aquinas, Fuller): law reflects a normative reality to be discovered