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Jurisprudence Social Legal | Free Jurisprudence Law Essay

Introduction

Over the last century, the study of jurisprudence had been filled with various debates on what is law and its relationship with morality. The former, according to Hart, were met with many literatures. The latter too were not short of academic contributions. These debates have not only enriched the study of jurisprudence, they also have an impact on our society as a whole. As Green rightly puts it, “we need such a theory, not to help decide cases or defend clients, but to understand ourselves, our culture, and our institutions, and to promote serious moral assessment of those institutions, and to promote serious moral assessment of those institutions, an assessment that must always take into account the conflicting realities of life”.

Central to these debates is the legal positivism theory. Legal positivism “is a whole tradition of thought, spanning over two centuries, comprised of numerous contributions that often diverge, sometimes even conflict, on key issues”. As advanced by Marmor, and will be adopted in this essay, there are three theses which stand in the heart of the positivists' theory. The first thesis, in the words of Kelsen, is that law is an “instrument of social control”. Laws are rules which compel on individuals to perform, or forbid them from performing, an action. For instance, criminal law prohibits an individual from injuring another by way of punishment and by the order of specific performance, contract law will impose on parties to a contract to perform what they have promised to do under the contract.

Secondly, “law is a social phenomenon, it is a social institution, and therefore, what the law is, is basically a matter of social facts”. This is in line with the propositions by the early positivists such as John Austin, who stated that “the existence of law is one thing; its merit or demerit is another”. Supporters of this thesis are concerned with whether or not the law exists, viz. whether or not the relevant authorities recognize the law, rather than whether the law is good or bad. The third thesis is that of separation thesis which, which was put forward by Professor HLA Hart. The separation thesis distinguishes law and morality. As Hart formulated, “it is in no sense a necessary truth that laws reproduce or satisfy certain demands of morality, though in fact they have often done so”. Thus, what is morally wrong can still be legally right. For instance, the Civil Partnership Act 2004 recognized homosexuality as legally right but there are certain sections of the society who believe that it is morally wrong. Homosexuals, however, will not be punished by the law as their actions are legally valid and accepted.

There were, and still are, many contentions for and against Hart's thesis in the last few decades. One such argument is that Hart's account of the fundamental aspects of the legal system is flawed and over-reliant on a specious conception of the relationship between social and legal rules. The validity of this argument will be examined in this essay. This will be done by first exploring the legal positivism theory propounded by earlier positivists such as Jeremy Bentham and John Austin, whom Hart's idea was based on, followed by discussion of Hart's modified version of the theory and responses by prominent figures to Hart's approach. The brief discussions in the preceding paragraphs show that Hart has brought in social elements into his account of the legal system. As will become apparent, the fundamental aspects of his theory relied upon social rules. Furthermore, it is submitted that some of his description of these rules are flawed. Instead of his theory being flawed, it is thus submitted that his account of the fundamental aspects of the legal system relies substantially on the social and legal rules but it is not completely flawed. Rather, for certain ambiguities in the key aspects of his theory, it does not command as much authority.

Classical Legal Positivism

Although legal positivism can be traced back to the earlier political philosophers such as Thomas Hobbes and David Hume, legal positivism were founded on the literatures of Jeremy Bentham, whom Austin's theory was based and developed. As Hart expressly took his main predecessors to be Jeremy Bentham and John Austin, it will be of great value to delve into the theories expounded by both these positivists