Law 121 Part One:Concepts of LawTraditional European Concepts of Law

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Traditional European Concepts of Law
Law is viewed in our own culture is not eh only way it can be approached.

The function of law:
Law is means of social control: it is used as a way to regulate the conduct of the members of a society or community.
Validity of law:
What distinguishes laws from codes of moral conduct or from other social rules that guide our behaviour.

Western legal theorist:

•        Positivist theories of law
      See law as gaining validity by adherence to a particular process of creation.
•        Naturalist theories of law
     See law as gaining validity from its adherence to certain independent principles such as morality, rationality or justice. Status of the law depends not only on the fact of enactment according to the requirements of the legal system in question, but also on some factor or factors outside of that system such as morality, rationality or justice.


Positivist Theories:
Austin’s command theory.
Valid law is
-        a command from sovereign,
-        backed by threat if breached
-        habitually obeyed
Pessimistic view of law
Sound enough to say law if sovereign is habitually obeyed?---------- lead to a circular argument: an authority cannot be self-authenticating

Kelsen’s Pure Theory of Law
      Each law is validated either by, or validates, the norm which precedes or succeeds it in the hierarchy of norms, and the validity of the hierarchy as a whole is validated by the ‘grundnorm’.
This norm is presumed because by its very nature it cannot be created.  It is presumed as a starting point and a logical necessity.
Constitutional laws for rule making
A ‘formalist’ approach
Focuses on structure of law, not content
But where do rules for establishing the grundnorm come from?  
Where do values come into law?
In this sense, the system is self-validating.
Hart’s Rule of Recognition
      Primary rules govern citizens
Existence and interaction of these two is essential to a legal system
Every system of law has a ‘rule of recognition’ with which other laws have to comply with to be a law (eg be passed by parliament)
Gains legitimacy from widespread acceptance by officials and enforcers
So Hart less focused on a supreme sovereign
More based on a system that is accepted.

Natural Law Theories:

                        Product of nature (Aquinas)

•        Moral rules act as a framework within which the law must exist.

•        If the law goes beyond, or conflicts with the framework, it loses its validity as law.

Based on reason (Finnis)

•        Law must answer to some fundamental requirements of logic and reason.

•        Where a legal system rests on a foundation which is justifiable in accordance with a common understanding of what is proper, its rules are legitimised and validated as law.

THE HART/FULLER DEBATE

Dispute about what should have happened with a real case involving laws under Nazi Germany

How should compliance with repugnant laws made by the recognised law making authority in one era be treated after that ?

Hart version:
Woman informed on husband for criticising Hitler
He was convicted under 1934 law and sentenced to death, but sent to front
Post-Nazi era, wife was convicted of procuring deprivation of husband’s liberty
Court found statute was ‘contrary to sound conscience and sense of justice of all decent human beings’
That was only possible by declaring the 1934 law was not law
Alternatives
-        let her go unpunished
-        pass retrospective legislation

Fuller version:
Nazis had disregarded their own existing laws
Different interpretation of the case,
Two laws she relied on did not apply to the facts,
1. required public acts, when his communication to her was private
2. did not provide for death penalty
Surely not appropriate for a post-Nazi court to interpret words in way Nazi’s did?
And cannot ‘respect Nazi law’ as Hart argues if apply a post-Nazi interpretation
Not appropriate to say ‘it is law but we refuse to apply it cos it is evil’
Better to say it is not valid law.
Not practical to wait for a new statute; was an urgent problem, delay would risk people taking law into own hands pending the passing of a new law.
The special importance of these cases is that the persons accused of these crimes claimed that what they had done was not illegal under the laws of the regime in force at the time these actions were performed. This plea was met with the reply that the laws upon which they relied were invalid as contravening the fundamental principles of morality.

KennyYu

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[ 本帖最后由 KennyYu 于 2008-8-28 10:30 编辑 ]

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