Few years ago, I wrote an article to summarize the basic idea of legal positivism. The law’s relationship to morality have been discussed for many years. Lawyers regularly make claims about what the law requires in a particular case. Does moral argument enter into them?
Philosophical thought about the nature of law has fallen into two major views. Legal positivism is a view that the law is best understood as a sociological facts and not on its merits. It is only a particular way of structuring social life. For the positivist, it is essential to the nature of law that it can be identified without appeal to controversial moral arguments or debate. Thus, law is identified with positive law.
Different positivists have different views of the necessary and sufficient conditions for appropriate enactment. Many lawyers know that H.L.A. Hart’s development of legal positivism emphasizes the role of rules in legal system. According to Hart, a common law system must contain primary law regulating behavior and secondary law regulating the changing of the primary law. These rules must be accepted by majority population and the officials applying them, in order to govern behavior effectively.
More precisely, Hart’s basic idea of primary and secondary law is quite simple. The primary laws are rules of conduct, and they tell us what you are legally obligated and what consequences attach to obedience or disobedience. So, criminal law can be considered as primary laws because they regulate certain actions and provide punishments for violating the laws. However, Hart believes that secondary laws include everything but not primary laws. For example, we can create, extinct, and modify the secondary rules. Contract law, for example, empowers individuals and business organization to make contracts, the documents that are usually collections of primary laws.
However, Hart claims that such system of rules will face difficult cases to which the officials cannot apply directly. In this situation, the judge or the officials do not have choices but to exercise discretion, making new law for the difficult cases. Hart states that these distinctions are descriptive and conceptual because keeping them in mind enable us to evaluate existing law with a reasonable person’s mind, rather than coming from a powerful political body or a noble dream of perfect justice.
One may question what elements should the judge or officials should look at for making new law for the difficult cases. Hart claims that the judges often have to look at the core and penumbral meaning in the case. For example, when a statute bans vehicles from a park, it is clearly to say that the law is to ban cars. A penumbra case can be that one accesses the park by using helicopter. The judge can easily extend the definition of a “vehicle” to a helicopter or a bicycle without altering the core meaning of vehicle.
Although this view can invade other core meaning in the law, such as flying airplane or helicopters, the core meaning of vehicle is not changed. As Alan Keyes provides the analogy of the worm and the apple in a video on Youtube: inside an apple has a worm, but it does not make the worm be parts of the apple. The core meaning of apple does not change.
(Although this video is an debate about gay marriage, I intend not bringing that issue to this blog post because it is not relative.)