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Agatha Nadeen Angandyta - Assignment 2 - KKI 2020

1. The document discusses the philosophical ideas of several legal scholars regarding the nature and foundations of law. It describes the positivist theories of Bentham, Austin, and Kelsen, focusing on their views of sovereignty, commands, and sanctions. 2. Kelsen proposed the "pure theory of law" which conceptualizes law as a hierarchy of norms derived from one another, rather than facts. He believed every legal system relies on some type of sanction to enforce norms. 3. The document also discusses modern debates around legal coercion and morality. It contrasts Mill's view that only preventing harm can justify legal coercion with Devlin's view that law should enforce a "public morality" to maintain social order.

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44 views

Agatha Nadeen Angandyta - Assignment 2 - KKI 2020

1. The document discusses the philosophical ideas of several legal scholars regarding the nature and foundations of law. It describes the positivist theories of Bentham, Austin, and Kelsen, focusing on their views of sovereignty, commands, and sanctions. 2. Kelsen proposed the "pure theory of law" which conceptualizes law as a hierarchy of norms derived from one another, rather than facts. He believed every legal system relies on some type of sanction to enforce norms. 3. The document also discusses modern debates around legal coercion and morality. It contrasts Mill's view that only preventing harm can justify legal coercion with Devlin's view that law should enforce a "public morality" to maintain social order.

Uploaded by

Agatha Nadeen
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© © All Rights Reserved
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Agatha Nadeen Angandyta

FH UI KKI - 2006518546

Philosophy of Law: Summary

Bentham, Austin, and Classical English Positivism


The modern idea of sovereignty arises from 2 lines of development: first, the rise of
new states prioritizing their newfound independence, in the process rejecting all feudal
concepts, and second, the era of leaving the medieval notion of law that was fundamentally
custom. Recognizing this new era, each country now has its own legal system, and thus is
both self-sufficient and is a notable legal entity, which means that each nation has the
unlimited power of putting out new laws. This is considered both secular and positivist.

A legal scholar well-known for his theories in this era is Bentham, and subsequently,
Austin. Bentham was, and is, known for rejecting the natural law and subjective values.
Instead, he would replace them by standards constructed by human advantages, pleasures,
and satisfactions. He believes that it is impossible to have a reform in the substantive legal
system without a reform in the legal system’s form and structure. Sanctions were generally
not a prominent player in Bentham’s theories. Bentham thought that a sovereign legal entity’s
commands can be deemed law, even if it was only supported by religious and/or moral
sanctions. Bentham’s greatest insight is the distinctive doctrine that a legislation’s power
should be “broken into shares”. The legislator themselves is only mandated to enacting
general laws, which would give mandate of enacting these general laws to individual or
bodies, such as judges or national officials. Bentham also pushed forward the “deontic” logic,
which believed that a command is the only one of four “aspects” which the legislator’s will
may bear to the acts concerning which he is legislating. To understand the structure of law,
there needs to be an appreciation of the relationship between opposition and concomitancy
between the four aspects of the legislator’s will

Austin, on the other hand, as a positivist, tends to show how law actually is, contrary
to moral or natural law doctrines of what is ought to be. The difference between Bentham and
Austin, is that Austin’s is the criminal statute. Bentham’s is a description of rational
reconstruction, much wider than that of Austin’s idea. The similarity, however, is that both
are rooted to concepts of sovereignty as well as obedience, which seems to have been
disputed by other legal scholars.
Agatha Nadeen Angandyta
FH UI KKI - 2006518546
The Pure Theory of Law
A legal scholar highly relevant to the state of law as we know it now is Hans Kelsen.
Kelsen is deemed to favor the Kantian approach to the theory of knowledge, of which the
objective world is altered by certain formal categories as applied by the mind of the observer.
If we define anti-potivism as the exhaustible possibilities of speculation about the nature of
law, then it is best if we define Kelsen as a positivist. Kelsen, however, rejects the idea of
legal positivism due to the confusion that usually arises between the law and the fact.
According to Kelsen, the law consists of norms. Norms are not a derivation of facts, but
instead a derivation of preexisting norms. The relationship between norms is imputation, not
causality. However, a question might arise that: if a norm can only be a derivation of other
norms, wouldn’t this make the continuation of this derivation as infinite?

Kelsen’s vision is not that of a theory of pure law, but the pure science of law. It
provides the basic forms where meanings can be scientifically understood as legal norms. The
theory of pure law is intended to make attention to it as rigorous as possible, and far from
being an attempt to to exclude consideration of experience, content and justice.

Not only that, Kelsen is considered a believer of a hierarchy of norms, visualizing it in


the form of a pyramid. He describes the validity of each norm as resting upon a higher,
encompassing norm, and it escalates from generality to individualization. In law, a higher
norm can be used to determine the creation and contents of another norm, although only to a
certain extent.

Kelsen, alike Austin, believes in utilizing sanctions in his doctrines. Every system of
norm is based on some type of sanction, even as far as the undifferentiated kind, such as that
of a dissaproval of a group. Law is an organization of force and power, and would therefore
be based off a coercive order engineered to create a certain social conduct. It is stipulated that
coercion shall be applied by officials when delicts are found. Therefore, no conduct can be
considered as delict if a sanction is not attached to it. However, the social reality faced by the
modern society now is that many public authorities have obligations bestowed upon them, but
there are no sanctions if there were any defaults. Another legal scholar, Woozley, however,
points out in Kelsen’s ideals that although an official shall impose a sanction on a deviant, the
official may not even have a legal duty to do so, and that it depends on the further conditions.
A judge only has a legal duty, because unless fulfilled, a higher norm will be sanctioned upon
Agatha Nadeen Angandyta
FH UI KKI - 2006518546
them. This hierarchy is evaluated to lead a regress upon society and the legal system as a
whole.

Modern Trends in Analytical Jurisprudence


Within the modern trends in analytical jurisprudence, the discussion of legal coercion
within the legal enforcement of morality is that legal coercion can only be justified for the
intent of preventing harm, or further harm, to others, as argued by John Stuart Mills. Lord
Devlin, however, a leading judge, dissented and stated that there is a public morality which is
the cement and foundation of any human society (let alone a modern one, supposedly), and
that the law, specifically the criminal law, has the obligation to regard this as the core
function of public morality. A legal conduct which promotes reprobation deserves to be
conquered by the practice of legal coercion, keeping the interest of the integrity of society at
mind. This can be considered as the root cause of why the jury shall not give snap judgment,
the verdict is the outcome of deliberate consideration, all with the guidance of an experienced
judge.

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