Law and morality
nature would have a right to everything, making rights inherently conflicting. As a result, a social contract was made between individuals, wherein they would agree to concede some of their individual right so that a state of social order can be established. Within this state, a sovereign entity would have absolute law-making authority to establish laws that regulate social interactions; hence, while Hobbes believed the law to be necessary to make social order possible, he didn’t believe that the law served to fulfil the requirements of any underlying structure of (natural) rights. Rather, they simply served to restrict or abrogate rights, in order to maintain social order. It is this belief in particular which led him to become the originator of legal positivism – the view that the law and morality are not necessarily entailed by one another, contrary to traditional conceptual naturalism. Though Hobbes himself incorporated natural law into his social contract theory, his belief that the ultimate source of law came from the sovereign of the new state, whose decisions did not have to be grounded in morality, was substantial in the development of later jurisprudential arguments. In particular, Jeremy Bentham and John Austin’s reductionist theories were crucial to the development of modern legal positivism. Whereas Hobbes’ theory saw legal propositions as prescr iptive statements on conduct, Bentham and Austin argued that they were purely descriptive statements of social fact. Bentham in particular criticized the classic conceptual naturalists like Blackstone, arguing that to base the nature of law on a theory of natural rights was to inevitably attempt to morally justify the law. Instead, he drew a clear distinction between ‘expository’ jurisprudence and ‘censorial’ jurisprudence; setting out the law as it is, as amatter of social fact (expository), and subjecting the law tomoral scrutiny and evaluation (censorial). Moreover, traditional approaches tended to conflate the issue of law- making authority as a matter of moral or political legitimacy – usually, like Hobbes, appealing to some social contract theory to explain the authority of legislators to enact laws. Again, both Bentham and Austin argued that they were confusing factual issues about what exactly the law is, with moral questions about whether it ought to be obeyed; law-making authority should simply be treated as a matter of social fact. Specifically, they believed that laws were a body of commands laid down by a sovereign entity (a supreme legislative body) in each particular legal system, and sovereignty was to be described as a social fact; of the regular tendency of the majority of a population to obey the commands of a legislative body. Ultimately, they regarded legal concepts as referring to structures of human behaviour , distinct from morality; Austin saw ‘sovereignty’ as a statement about regular patterns of human obedience, and ‘legal obligation’ as the likelihood of suffering a sanction in the case of non - compliance. Similarly, H.L.A. Hart also believed that it was necessary to distinguish between law and morality, though both may coexist. However, he saw the reductionist theories of Bentham and Austin as inadequate in explaining the nature of law. To begin with, he argued that one can’t establish a separation of the law and morality by just reducing legal propositions to straightforward, factual descriptions of regular patterns of behaviour – this fails to accommodate notions of justification, obligation, right and entitlement. For instance, while Austin saw legal obligation as simply a likelihood of sovereign-backed sanction (in the case of non-compliance), this view fails to account for a situation where a judge uses legal obligation as a reason, in of itself, for sanctions. Here, the judge is justifying the sanction with a rule, and not just predicting the likely application of a sanction. Instead, Hart develops the concept of an ‘accepted rule’ as a basis for legal validity. An accepted rule exists in the case of two aspects: the ‘external’ aspect, regarding regular patterns of conforming behaviour; and the ‘internal’ aspect or point of view, wh ere such regular patterns of conduct are regarded as a standard that
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