When Legal Positivism Goes Wrong

Legal Positivism and Whiteley v. Chapell (1868)

In my other blog post, I summarized that legal positivism is a legal theory that the content of law depends on social facts. Legal positivism sounds important for studying law, but Legal Positivism really that useful in legal system? It can be useful, but the court decision can be absurd and bad.

In Whiteley v. Chapell (1868), the accused used the names of his uncle recently deceased for election. This 19th century English case had to look up the issue relating to voting rights required a person to be living in order to be entitled to vote. Interestingly, the court ruled that although the defendant had voted twice, and once as someone else, he could not be found guilty of “impersonating any person entitled to vote” as a dead person. He could not be found guilty because a dead person was not entitled to vote.

The decision is made by using the literal to establish who is in fact “entitled to vote”. Although this is a prime example of the literal rule being used and having a ridiculous outcome, the defendant did not get charged as he had voted twice, which most countries’ democratic system is not supposedly allowed.

Nevertheless, this case is a typical example which the court has adopted the idea of legal positivism. As legal positivists think that there is no morality in any legal system, the judge needs to go outside the legal system and makes the observation in society, in order to govern behavior effectively. In such circumstances, the judge has no choice but making law rather than simply applying it, even though the outcome is absurd.

A blog post about Legal Positivism, Ronald Dworkin, and the debate

Law Library, University of Zurich
Picture credit: http://leonaegele.blogspot.com

The relationship between Law and Fairness

On the other hand, Hart and other legal positivists’ view implies that there is no fundamental values of fairness or moral values in legal systems. The system insist the values simply reflecting the views of those with the power to make law. As we can see from the case Whiteley v. Chapell rules, the outcomes has no moral value at all. However, the outcome turns out clearly absurd and ridiculous. When the judge tries to steer clear of making substantive judgement of fairness, the decision clearly is bad.

Many people disagrees with Hart and other legal positivists. Ronald Dworkin argues that law does not just consist of rules that have absolute character, but also includes certain moral rules that have weight and that are not traceable to any formal authority.

Ronald Dworkin’s view

Dworkin argues that judges invoke legal principles that do not derive their authority from any official act of promulgation. He believes that these principles must be characterized as law because the judges are bound to consider when relevant. In his perspective, conflicting principles provide certain reasons that must be weighted, according to the importance of the respective values they express. Hence, rules are distinguishable from principles in two respects – principles have the dimension of weight, and rules necessitate a particular outcome. In other words, principles lack what rules should have, and rules cover what principles should have.

A blog post about Ronald Dworkin view on Legal Positivism

This is so hard. Picture credit: http://www.thatssotrue.com/

Riggs v. Palmer (1889) as a hard case

Dworkin also refers Riggs v. Palmer as an example to show how the judges uses principles to decide hard cases. In Riggs, Francis B. Palmer made his last will and testament, in which he gave small legacies to his two daughters, Mrs. Riggs and Mrs. Preston, and the bulks of the estate to Elmer Palmer to be cared for by his mother, Susan Palmer, until he became of legal age. However, Elmer feared that his grandfather might change the will, and he murdered his grandfather by poisoning.

Although a criminal law existed to punish Elmer for the murder, there was no statute under either probate or criminal law that regulated his claim to the estate on his role in such murdering act.  At the time the case was decided, the court declined to award the defendant his gift under the will on the ground that it would be wrong to allow him to profit from murdering.

This case leads to a challenge to legal positivism.

In his Law’s Empire, Dworkin argues that this case shows two important points that contradict Hart’s legal positivism view. First, this case does not lie at the edge of legal rules. The judges did not apply the legal rule as required for the final decision. Dworkin believes that the court decided by this hard case by citing “the principle that no man may profit from his own wrong as a background standard against which to read the statute of wills and in this was justified a new interpretation of that statute.” Second, this case shows a debate about what the law is but not what the law should be.  According to Dworkin, there should be debate about what counts as law under legal positivism.

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