Legal Theory Components

What does “reverence” mean? Standard dictionary definitions define reverence as “respect and appreciation due to a superior or elder,” but this is not the technical legal meaning of reverence. It is difficult to define the concept of “deference,” but deference appears to imply a relationship between two legal actors or institutions, for example, a court and a legislature. Deference usually refers to situations where the previous institution has some power over the institution to which it could appeal. Examples include (1) an appellate court, which reviews the decision of a court of first instance, (2) a court that reviews the constitutionality of laws, and (3) a court that reviews the legality of the actions of an administrative authority. The idea of “underdetermination” is best explained by comparing it to two opposing ideas, “determination” and “indeterminacy.” A legal text is “indefinite” if it gives no direction and allows judges to achieve the desired result. A legal text is “authoritative” if it fully determines its application. “Underdetermination” occurs when a legal text agrees with more than one outcome, but excludes other outcomes. In other words, a legal text is vague with regard to legislation implementing that text only if it allows some possible rules but excludes others. Criminal liability (guilt) is based primarily on the actions and consequences that the offender intends to do.

Liability for negligence is relatively exceptional in modern criminal law, although it is the predominant form of liability in modern compensation law (“civil law”). (The duties and standards of care used to assign tort/tort/civil liability are partly merely moral and partly conventional—in no way are they source-based in the sense of sources to which unconditional priority is given in legal positivism.) In the English-speaking world, the most influential legal positivist of the twentieth century was H. L. A. Hart, professor of law at Oxford University. Hart argued that the law should be understood as a system of social rules. In The Concept of Law, Hart rejected Kelsen`s view that sanctions were essential to the law and that a normative social phenomenon such as law could not be based on non-normative social facts. In accordance with Dworkin`s two-dimensional (i.e. qualified) explanation, natural law theory will agree with the thesis that makes Green characteristic of legal positivism: Aristotle (Politics III.15.1286a-IV 4 1292a) vigorously debates whether political authority can be better exercised by a “domination [primacy] of law” or “a domination of men”, say by a better person, or a democratic assembly or (rhetoric I 1 1354a32–b16) a court. He takes his arguments to suggest the answer that in almost all societies, on almost every occasion and question, it is preferable that government be made by or in accordance with the law, since (i) laws are the product of reason(s) and not passion(s), (ii) the sovereignty of a ruler or assembly tends to tyranny (i.e.

governs in the interest of one party, not the common good), (iii) equality requires that every mature person has some share in governance, and (iv) rotation of positions and civil servants is desirable and can hardly be managed without legal regulation. Thus, for Aristotle, the central case of practical authority is the government of a polis by law and rulers regulated by law. Some theories at the meta level take place at a very high level of abstraction. For example, the terms “legal formalism” and “legal realism” (or “legal instrumentalism”) are sometimes used as labels for very abstract normative legal theories. When words are used in this way, legal formalism combines the preference of rules over standards with the idea that judges should feel bound by written constitutional provisions, laws and precedents. Legal realism is more difficult to determine, but some currents of legal realism advocate norms rather than rules and advise judges to be concerned with political considerations and principles; Other currents of realism advise judges to take care of the particular facts of the cases before them and to avoid grand theories. Many realists or instrumentalists reject the idea that judges should feel bound by constitutional and legal texts or by the formal doctrine of stare decisis. Normative legal formalism and normative legal realism are therefore meta-level theories at a very high level of the general public. These differences between Hart and Dworkin have led many legal philosophers, most recently Bix (1996), to suspect that they take no contradictory positions. Therefore, the question remains whether Dworkin`s work should be interpreted in such a way that it falls within the scope of analytical jurisprudence.

Hart understands his legal theory as both descriptive and general in that it captures the fundamental characteristics common to all legal systems – which presupposes a point of view that lies outside all legal systems. For this reason, he sees his project as “an undertaking radically different from Dworkin`s conception of legal theory (or `jurisprudence` as he often calls it), as partially evaluative and justifiing, and as `oriented towards a particular legal culture`, which is usually that of the theorist and, in Dworkin`s case, that of Anglo-American law” (Hart 1994, 240). The legal and economic movement argues for the value of economic analysis in law, both as a description of how courts and legislators behave, and as a prescription of how these officials should behave. Legal economists, led by Richard Posner, argue that the content of many areas of the common law can be explained by its tendency to maximize preferences: Thus, according to Hart`s view of the social fact thesis, a sentence P is legally valid in a society S only if it meets the criteria for validity of a binding recognition rule in S. As we have seen, the conventional argument implies that an S-recognition rule is binding only if there is a social agreement between civil servants to treat them as defining standards of official conduct. According to Hart, “[t]he rules of recognition, which establish the criteria for validity and their rules for modification and jurisprudence, must therefore be effectively accepted as common public standards for the official conduct of their public servants” (Hart, 1994, p. 113). Some theories have adopted some main principles of natural law theory, claiming to be theories of natural law, but have argued that even the most unjust laws create a commitment to obedience that is both juridical and moral. Kant`s theory (see Alexy 2002, 117-121) is one such theory: a legal system may consist entirely of positive law, but must be “accompanied by a law of nature that establishes the authority of the legislator. to bind others simply by its arbitrariness.” But this so-called fundamental norm of natural law is not directed to the material justice of established juridical norms, but exclusively to the need for legal security and civil peace, which Kant takes to exclude any right to resist unjust laws and any denial of their complete legality. Alexis pointed out the confusions and contradictions in Kant`s attempts to escape the classical position that laws whose injustice is sufficiently grave can and must be denied the legal character of laws, that citizens and courts can treat morally and legally as laws precisely as courts – or as if they were.

In many ways, the philosophical developments of the seventeenth and eighteenth centuries (like their counterparts of the twentieth and twenty-first centuries) were not so much progress as a step backwards. But exactly how the classical position itself should be formulated, explained, and applied today is debated among Alexy, Finnis, and others (Alexy 2013; Finnis, 2014; Crowe, 2019). So far, we assume a fairly clear distinction between positive and normative legal theory. And for many purposes, assuming that there is a clear line separating normative and descriptive legal theory is a good working hypothesis. However, even if one adopts such a clear line, there are relationships between positive and normative legal theories. The part of our positive law which consists of legal principles or rules which accomplish such purposes as those just enumerated has often been called ius [or jus] gentium by theories of natural law. This name, coined by jurists of classical Roman law such as Gaius (circa 165 AD), alludes to the set of rules and principles found in similar, if not identical, forms in virtually all legal systems. The reason for their ubiquity, in general, is that any reasonable consideration of what is necessary for individuals, families, and other associations to live reasonably well together in political society will identify these principles and rules as necessary. In modern law, they are in principle referred to by names such as “the general principles of law recognized by civilized nations” (Statute of the International Court of Justice, art.