Law Is What It Is and Not What It Ought to Be

A society has a legal system only if and to the extent that it honors this ideal, and its law is the totality of all the considerations which the courts of such a society would apply morally justified, whether or not these considerations are determined by any source. In order to identify the law of a particular society, we must always engage with moral and political arguments, for law is all that is compatible with an interpretation of its legal practices that shows that they are best justified in the light of this invigorating ideal. In addition to these philosophical considerations, Dworkin invokes two characteristics of the phenomenology of judgment as he conceives it. He notes a deep controversy among lawyers and judges about how important cases should be decided, and he finds that the considerations they consider relevant to their decision are diverse. The controversy suggests to him that the law cannot be based on official consensus, and the diversity suggests that there is no single social rule that validates all relevant grounds, moral and non-moral, for judicial decisions. Kelsen`s most important contribution lies in his attack on reductivism and his doctrine of the “fundamental norm.” It states that the law is a normative field and must be understood as such. Power does not do good – not even law – so the philosophy of law must explain the fact that the law imposes obligations on its subjects. Moreover, law is a normative system: “Law is not, as is sometimes said, a rule. It is a set of rules with the kind of unity we mean by a system” (1945 [1961:3]). For imperiatists, the unity of a legal system is that all its laws are commanded by a sovereign. For Kelsen, they are all links in a chain of authority. For example, a law is legally valid because it is created by a body lawfully exercising the powers conferred on it by the legislature, which delegates those powers in the manner provided for in the Constitution, which in turn was created in the manner provided for in a previous constitution.

But what about the very first constitution, historically? His authority, according to Kelsen, is “assumed.” The prerequisite for interpreting a legal norm as binding is that the first constitution be validated by the following “basic norm”: “The original constitution must be followed”. Well, the basic norm cannot be a legal norm – we cannot explain the binding nature of the law by referring to more law without infinite hindsight. Nor can it be a social fact, because Kelsen asserts that the reason for the validity of one norm must always be another norm – not an eastern target. It follows that a legal system must consist of standards all the way down. It is subject to a hypothetical, transcendental norm, which is the condition for the comprehensibility of all (and all) other norms as binding. “Presupposing” this fundamental norm does not mean confirming it as good or just – the prerequisite is only a cognitive attitude – but, according to Kelsen, it is the necessary prerequisite for a non-reductivist presentation of law as a normative system. Here, Kelsen points out the fact, in relation to Austin`s legal theory, that the law is an order from a ruler supported by sanctions. But here, Austin`s theory says that what the law “should” be, not what the law is.

This is where Austin`s theory fails when it comes to justifying international law, procedural law, etc. Thomas Hobbes, in his seminal work Leviathan, postulated the first detailed legal concept based on the concept of sovereign power. As Hampton writes, “Law is understood [by Hobbes] as dependent on the will of the sovereign. No matter what a law is, no matter how unjust it seems, if it was ordained by the sovereign, then and only then is it the law. [8] However, there are discussions about Hobbes` status as a legal positivist. [8] [9] [10] Let me conclude, as a law professor usually does. Since the Sophists, professors of rhetoric – and this is what a law professor, a lecturer in pleadings is – have been accused of having contradictory views. I take this accusation as a compliment. An honest and open-minded scholar is indeed willing to maintain and test several hypotheses.

It is a curious fact that almost all theories that emphasize the essentially moral character of law regard the character of law as essentially good. The gravity of Fuller`s philosophy is that law is essentially a moral enterprise made possible only by a robust adherence to one`s own inner morality. The thought that the law could have an inner immorality never crossed his mind. But, as Hart acknowledged, where there is “a union of primary and secondary rules”—that is, wherever there is a right—moral hazard arises out of necessity. Not only are there new effective forms of oppression that are not available in communities with more diffuse forms of social organization, but there are also new vices: the possible alienation of community and value, the loss of transparency, the rise of a new hierarchy and the possibility that some, who should oppose injustice, be bought from property. what the legal system entails. Although law has its virtues, it also necessarily risks certain vices, which marks an inverse link between law and morality. Before addressing the two aspects of law of order, we must first be clear about what “is the law” and what “should be the law” is.

Is Law mainly refers to the Black Letter law, which has been promulgated by a competent authority and is applicable to humans. On the other hand, the “earned” law is not a formal law like the IS law, it is basically an ideal type of law based on morality. This law is somehow considered better than the current laws and is intended to be used as an approach to achieve the ideal position. It is outside the realm of law, what is not achieved becomes the law of time. A lawyer who pins his hopes on the law instead of the reality of the law increases the risk of adverse outcomes. She is hired to write a contract that can withstand a challenge or a victory. He is not paid to advance an idiosyncratic hypothesis, except in the case where the client appreciates what he invites. The evaluative argument is, of course, at the heart of legal philosophy in general.

No legal philosopher can only be a legal positivist. A full understanding of the law also requires accountability for what might be considered the merits of the law (should the law be effective or elegant and fair?); what role should the law play in the judicial system (should valid law always be applied?); what claim does the law have to our obedience (is there a duty to obey?); And also the more practical questions of what laws we should have and whether we should be right. Legal positivism does not seek to answer these questions (although Murphy 2014:88-108 to argue that the theory has important first-rate implications for legal practice). Nevertheless, positivism`s assertion that the existence and content of law depend only on social facts gives shape to them. It is a question of the content of all legal systems. Where there is law, there is morality, and they regulate the same things by analogous techniques. Of course, to say that law deals with the subject of morality does not mean that it works so well, and to say that all legal systems create obligations does not mean to approve of the duties thus created. This term differs from Hart`s thesis of “minimal content,” according to which there are basic rules of violence, property, fidelity and kinship that any legal system must encompass if it is aimed at the survival of social beings like us (Hart 1961 [2012: 193-200]). Hart sees this as a matter of “natural necessity” and is willing to relativize his support for the separability thesis to this extent.