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3. Law as custom
Whence then comes the law? Hume ascribes it to convention and custom primarily, coupled with reflection upon the pleasing quality (the utility) of rigorous observance of customary norms (see Hume, D. §5). Bentham and Austin restrict the role of custom or ‘habit’ to the issue of obedience. Whoever is habitually obeyed by the many in a numerous society is in a position to enforce their commands by effectively coercive sanctions up to and including death. Thus do they differentiate the positive law from other forms of so-called law such as scientific law, laws of honour, or personal moral codes. Law is such by command of a sovereign, the one habitually obeyed who habitually obeys no other (see Sovereignty).
Legal positivism of this stamp is an easy bedfellow with political utilitarianism, and programmes of legal reform. Codification of law is an associated ambition, justified on utilitarian grounds (see Utilitarianism; Beccaria, C.B.; Bentham, J.). Codification is also a distinctive phenomenon of the early nineteenth century, product of the Enlightenment critique of the old customs of the ancien régime, though also of spadework in the exposition of civil law partly achieved under the aegis of late legal rationalism. After the Code Napoléon, promulgated in France in 1804, there followed a century of codification and legislative modernization of law in many places, and with this characteristically went approaches in legal philosophy that stress the essential emergence of law from a sovereign’s will, or the will of the state as a rational association (in Hegelian vein; see Hegelianism). Nevertheless, this movement produced its own counter-movements, stressing the importance of the spirit of the people as the basis of law (see Savigny, F.K. von; Bryce, J.; Jurisprudence, historical), or more prosaically locating it primarily in custom, a view particularly popular in the context of the common law (see Common law; Selden, J.).
Twentieth-century critics of classical positivism accuse its authors of confusing ‘commands’ with ‘binding commands’ (see Kelsen, H.; compare Weyr, F.) or of mislocating the roots of legislative authority in mere ‘habit’, rather than in the ‘internal point of view’ of those for whom the system within which authority is exercised has normative force (see Hart, H.L.A.). The Kelsenian version of positivism rests it on the necessary presuppositions for a value-free science of law, and other thinkers have pursued further the question of ‘legal science’ (see Bobbio, N.); the Hartian version rests it on the customs of at least the official and political classes in a state, whose practices concerning the recognition of certain criteria for the validity of legal rules define the ultimate ‘living constitution’ of a state, its ‘rule of recognition’ (see Legal positivism). Rival varieties of Hartian positivism have become salient in recent decades (see Legal positivism, inclusive versus exclusive).
A notable offshoot of or development from positivistic legal study has been the development of ever-more rigorous approaches to conceptual analysis (see Legal concepts) and categorization, seeking to account for the use of concepts like ‘duty’, ‘right’, ‘ownership’ and others in the framework of general legal norms (see Norms, legal; Hale, R.L.). Hohfeld’s analysis of ‘fundamental legal conceptions’ (see Hohfeld, W.N.) has had many followers and critics, and contemporaries in other traditions have taken a somewhat more psychologistic approach to the task (compare Petrażycki, L.). Reflection on legal concepts as institutions or ‘institutional facts’ has led to developing an ‘institutional’ theory of law that transforms what was originally a naturalistic conception into a positivistic one (see Institutionalism in law; Weinberger, O.).
Brown, Beverley and Neil MacCormick. Law as custom. Law, philosophy of, 1998, doi:10.4324/9780415249126-T001-1. Routledge Encyclopedia of Philosophy, Taylor and Francis, https://www.rep.routledge.com/articles/overview/law-philosophy-of/v-1/sections/law-as-custom.
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