Lecture Notes on Legal Theory

Introduction to Legal Theories

• Mention of the game squash and its unfamiliarity to some students as an analogy for unfamiliar concepts in law.
• Main focus of the course so far: Legal Theory of John Austin.
  • Reconstruction of Austin's view by H.L.A. Hart.
  • Hart’s criticism of Austin.
• Transition to discussing Hart’s own theory of law.

Legal Positivism

• Definition: Law as a social phenomenon; legal systems are human-created artifacts.
• Key Opponent: Natural Law Theory.
  • Natural law theory suggests laws are not purely human creations but are influenced by natural law.

Natural Law Theory

• Historically defended by St. Thomas Aquinas.
• Belief: Profoundly unjust laws do not qualify as true laws.
• Opposition to legal positivism: Requires laws to meet moral standards to be considered "laws."

Joseph Raz and Legal Positivism

• Prominent legal positivist.
• Key Idea: The validity of law is determined by social facts, not moral criteria.
  • Different positivists have varying views on which social facts determine law.

Key Concepts in Legal Positivism

Separation Thesis

• Central Idea: No necessary connection between law and morality.
  • Law is a social fact independent of its moral value.
• Example: A law can exist even if it is immoral, as long as it meets social conditions.

Conceptual Analysis in Legal Positivism

• Distinction between analyzing legal concepts and historical or sociological inquiries into law.
• Legal positivists focus on what law "is" without the "baggage" of moral or social implications.

Analogy: The Game of Squash

• Rules and facts about the game (dimensions, ball size) are essential to its concept.
• Social connotations (elitism, New England culture) are "baggage" and not essential.

Non-Cognitivism and Legal Positivism

• Non-Cognitivism: Moral judgments are not factual assertions; they express feelings.
• Historical association with legal positivism due to the separation thesis.
• Non-cognitivism suggests moral statements are akin to expressions, not factual assertions.

Hart’s Characterization of Legal Positivism

• Distinguishes essential legal analysis from moral or historical judgments.
• Legal positivism includes the possibility of analyzing law without moral evaluation.

Summary of Key Ideas

• Legal Positivism: Law is a social construct, separate from moral questions.
• Theories like Austin’s and Hart’s fit within the framework of legal positivism.
• Central thesis: Law can be understood via social facts, independently of moral considerations.
• Hart’s own theory will be discussed further, presenting a different version of legal positivism.