Version: v1, Published online: 1998
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4. Legal systems
The debate between positivism and realism brings to the forefront a key concept of legal positivism, that of a legal system. To positivistic jurisprudence, legal systems are both semantic entities and social realities. Legal rules are first of all words and meanings, prescriptions which can be described and understood, interpreted and used to give a normative legal meaning to facts and actions. Legal rules, being language, are also part of the world of social facts. Legal matters are to be decided by means of arguments or reasons taken mainly from within a legal system; these arguments or reasons are, of course, the legal rules. A legal system contains not only the rules which directly govern actions (called ‘primary rules’ by Hart), but also the ‘secondary’ rules, rules about rules, by which the former are ‘serviced’ (recognized, made, changed, applied). Most positivists assume that every legal system implies one supreme rule, containing or summing up the criteria by which all the other rules of the system are recognized as part of the system (basic norm in Kelsen’s theory, rule of recognition in Hart’s) (see §3).
The notion of a legal system explains the ‘formalist’ aspects of legal practice, the fact that law is conceived by positivistic jurists as being both ‘closed’ and ‘self-sufficient’ or, in a sense, ‘complete’. This does not mean that all legal issues must always be argued without referring to non-legal arguments, that is, moral and sociological facts or reasons. It means, rather, that only those reasons recognized by legal systems are compelling and that they should prevail over all the others, which can be used only to fill the gaps in the system (they amount to using discretionary powers).
According to this point of view, a legal system, with its enormous complexity, is not qualitatively different from a single rule. When we accept a single rule, we can use it as a reason for justifying our practical choices. However, this only postpones the problem, as now we have to justify the acceptance of the rule itself. The same happens with a legal system, but on a much wider scale, according to the positivistic conception (Raz 1975). By accepting a legal system we can put off our basic problem for quite a while, but at the end, we shall have to justify our acceptance or rejection of any particular legal system as a guide to our actions. This is sometimes neglected by people engaged in legal practice, who become, so to speak, moral hostages of the internal complexity of a legal system, thus embracing positivism in the third of Bobbio’s senses mentioned above. On the contrary, as we have seen, positivistic philosophers can well claim to be innocent of this particular sin, because of the thesis of the separation of law and morals.
In fact, having substituted effectiveness for justice as a criterion for ascertaining which normative system is law in a certain society, legal positivists will argue that such a choice is made for descriptive purposes only, and is wholly compatible with rejecting such a legal system on moral grounds. Critics of positivism, to be credible, thus have to delve deeper. To be effective, an attack has to be directed against the positivistic model of legal description; thus some critics argue that a moral bias is already present whenever we try to distinguish a legal system from other kinds of moral and social rules and, equally, when we assume that in any society there is only one such legal system. Others argue that legal systems do not even exist as a social fact, being rather the product of a normative value-laden interpretation of social reality.
This is not to say that the positivist conception, if correct, is without advantages. The process consisting in the use of the mental tool of the concept of a normative system transforms, at least up to a point, the process of reaching a legal decision into a calculus based on known rules. This is precisely what is called ‘the rule of law’ by its supporters and ‘formalism’ by its critics (see Rule of law (rechtsstaat)). But here uncertainties and difficulties as to this representation of legal activity will crop up at many levels. First, we might doubt that the meaning of the words which make up such rules can be ascertained in any objective way at all. This is the classic problem of interpretation. Such objections usually come from non-positivists (see §5). Second, a host of problems is raised by the ‘dynamic’ or ‘formal’ nature of legal systems, and by the connections between legal rules. If a legal system has to be a calculus, then it is a strange kind of calculus which has to refer continuously to external facts – such as the fact that a statute has been enacted by the legislature or that a court has actually issued a decision – in order to complete its own calculations. This difficulty is well recognized by legal positivists themselves (Kelsen 1979). Positivism thus emphasizes that the systematicity of legal systems is different from purely deductive normative systems where the content of individual concrete rules can be deduced from first principles. On the contrary, a ‘dynamic’ legal system requires a continuous input from external facts and decisions; laws are made and abrogated by legislators, not deduced from first principles. Even judicial sentencing is, obviously, not the result of pure deduction from general rules; sentences have to be pronounced by a judge in the course of a trial, and if they happen to be incorrect deductions, so much the worse for logic and legal calculus. The dynamic or formal aspect of law, so it might be argued, is a matter of power and authority rather than of logic and calculus.
The point is not just that laws can be broken. This would not worry the legal positivist much. Laws are made precisely because they are capable of being violated. The point is that the law itself appears to be able to break its own rules, so to speak, as when an unconstitutional statute is considered valid in a legal system unless it is repealed through a special legal procedure, or a legally wrong sentence is legally binding unless it is reversed on appeal (Paulson 1980). That is why the positivistic autonomous ‘calculation’ of legal rules and decisions can conflict with facts and arguments which are not purely external, as they are considered relevant by the calculus itself (as, for instance, the wrong decision by an authority of the system). This is a powerful argument in the hands of the critics of positivism, who believe that the theory of the legal system and therefore the rule of law idea are a disguise for the exercise of naked power; while positivists try and rebut it with the theory of delegated power (Austin) and of discretion (Hart), claiming that discretionary powers are still controlled by the legal calculus, in so far as the external input is allowed and limited by the system itself (Austin 1832; Hart 1961).
Jori, Mario. Legal systems. Legal positivism, 1998, doi:10.4324/9780415249126-T008-1. Routledge Encyclopedia of Philosophy, Taylor and Francis, https://www.rep.routledge.com/articles/thematic/legal-positivism/v-1/sections/legal-systems.
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