In this respect a study of comparative law is, by definition, an interdisciplinary study. Legal rules are a subcategory of social rules that regulate human interaction see for instance Hart This approach aims to propose a framework for understanding the differences in the protection of human rights. The point of departure is legal hermeneutics, which points towards the conscious and unconscious factors at play in the elaboration and application of legal rules, the collaboration between mythos and logos see Gadamer , pp. Second, a comparative law approach can be a normative enterprise.
It can focus on engaging in a philosophical analysis enlightened by the differences or similarities in the regulation of human rights issues, in order to propose concrete solutions for the regulation of a human right. In this approach the legal similarities or differences under comparison would provide inspiration for theoretical arguments for and against a solution in one area or another. In this approach comparative law provides a stimulus for philosophical reflection on a human right.
The differences in the legal regulation of a human right can be the case study of applied legal philosophy in view of exploring a solution that seems to express principles of justice. Third, a comparative law approach can also combine both elements of the two previously mentioned approaches. It can aim at studying the sociopolitical frame that led to the emergence of legal rules and challenge them in the cases where it seems that there is some flagrant injustice in the application of rules upon concrete cases of human rights.
This means that it can engage in a study that can be articulated as a back and forth movement from the differences in the operation of legal rules to how they should be operating. This will be a back and forth movement from the formation and operation of the rules in their context to a normative principle as to how they should be operating and the other way around. The study of the operation of the law in different contexts can provide insights as to how they should be operating in order to protect rights better.
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This can provide guidance for future cases. This back and forth movement can allow for a normative understanding of the law on rights that has real-world applications and is not construed too ideally. It can also lead to reconceptualizing see Brand , pp. These methodologies concern studies of concrete cases of rights. They presuppose a somehow narrowly defined object of the analysis, such as studying the differences among legal systems in balancing rights in conflict with other rights or in conflict with collective considerations.
Examples of the kind are hate speech, where what is at stake is the need to decide the limits of freedom of expression versus reputational interests. Other cases are the regulation of wearing religious symbols, where what is at stake is the interest of the state to protect its citizens from themselves and others versus the right of the person to express herself. Some other cases can be data protection, which concerns balancing the right of the person to decide who has access to information concerning her and the rights of marketeers to have access to data.
Other case studies may concern conflicts that emerge around the enforcement of anti-discrimination law. The last category gives grounds for study in reference to the preference for the protection of one type of freedoms through anti-discrimination law such as freedom of religion to the detriment of other types such as welfare rights. The right not to be discriminated against often collides with the right to freedom of religion.
The need to protect the autonomy of religious institutions has led some legal orders to accept exemptions in the enforcement of anti-discrimination law when religious institutions put forth that they need to discriminate out of respect for their religious convictions. The article discusses the challenges that the researcher faces in her attempt to use these methodologies and how these challenges can be overcome.
First, these challenges arise in the selection of cases that are appropriate for comparison, in assuring comparability. What is at stake is the question of commensurability. If what motivates a comparative law study is the search for principles of justice the researcher needs to persuade that her methodological approach serves her aim and that the cases she has chosen to study are comparable. Second, challenges emerge for the comparatist concerning the research question that she uses, her theoretical framework and her criteria of evaluation.
Furthermore, these challenges concern the validity of the interpretative schemata that she refers to or that she creates in order to interpret the legal phenomena she is studying. These interpretative schemata may be defined by conscious and unconscious bias. Although to some extent it is impossible for the researcher to transcend the subjectivity of her perspective, there is a moral obligation for the researcher to make an effort to transcend this bias. Interdisciplinary collaboration as well as collaboration with scholars whose background was formed in the foreign legal system under study can help transcend these challenges.
Another concern for the comparativist is the danger of being trapped in the relativity of her background, which would prevent her from thinking critically about the object of her study. The solution to the problem comes from the reflection on the just character of the rules that is implicit in any attempt to compare legal rules. The inherent normative dimension of the law can help transcend the circumstances that define the biases of the researcher.
The law as a normative discipline has its own constraints of justifiability. The researcher is led to transcend her conditioning in a context that provides to her a frame of evaluation and to think in abstracto about principles of justice. The comparatist who studies legal rules inevitably transcends her horizon and is led to think about the justness of the legal rules she is studying.
As such, rights imply concrete obligations by the state Newcomb Hohfeld , p. Different jurisdictions may follow different conceptions on the extent of the positive obligations of the state to respect a liberty and enforce its protection by others within civil society. Different states may follow different conceptions in converting liberties, always in the Hohfeldian sense, into rights. Studying legal rules that regulate rights from a comparative perspective is an area of research where there is a continuum between various social and theoretical sciences.
Comparative law scholars have noted the interdisciplinary character of comparative law as an approach to the study of the law Grosswald Curran ; Husa Few comparative studies offer this interdisciplinary perspective that studies cases from an interdisciplinary perspective and that lead to meaningful insights.
The methodologies proposed in this article also are based on this insight recommending various disciplinary angles for comparative analyses of rights jurisprudence. The methodologies analysed below presuppose a conception of a legal system as jurisprudence, composed of factual as well as ideational, normative elements, and as such these methodologies can help explore how various juridical ideas protected as rights have materialized in different polities see Valcke , p.
Comparing legal rules involves identifying some similarities, for the case of a right that is important to protect. It also involves attempting to identify units of variation that are worth studying see McCrudden For a comparison in the area of human rights it is the substantive rulings that are important that have found legal form in legal texts and legal decisions and less the legal form in which they have become positive rights.
One approach could be to engage in a study of the historical and sociopolitical context that motivated different constitutional systems and legal orders to regulate the exercise of a liberty in one way or another. A comparative law study may focus on the sociopolitical context that led to the elaboration of differences in the legal regulation of human rights questions.
Legal rules are a subcategory of social rules that regulate human interaction. Engagement with social theory can provide insights into the social origins of legal rules. See Nelken ; Riles ; Cotterrell , p. It may also propose to reflect critically on this framework.
The question is relevant with reference to the scope of the protection of human rights, for instance in cases of exploring their limits that courts decide to trace on the balance with other legal rights and social considerations. The point of departure here is legal hermeneutics. This methodological approach points towards interpreting the conscious and unconscious factors at play in the elaboration and application of legal rules.
Hans-Georg Gadamer notes in his capital book Truth and Method that there is always a collaboration between mythos and logos see Gadamer whenever an interpreter is making sense of a text. This distinction aims to underline that part of the elements at play in legal reasoning come from biases and prejudices conscious and unconscious and part of them come from the use of reason. The reasoning of jurists when they debate whether it is legitimate for the state to limit a right or not is influenced by factors that they can control, their reason, logos , and factors that they cannot control, all sorts of prejudices, mythos.
The comparatist will thus aim to propose some elements that compose the mythos and the logos of the jurists in a legal system when they discuss the permissibility of limiting a right. For instance, an analysis of the differences in the regulation of headscarf bans can focus on the dominant understanding of the role of the government in various constitutional orders see Tourkochoriti This would imply studying to what extent it is legitimate for the government to intervene and define the dress choices of the citizens, to protect them from themselves and social pressure in their dress decisions.
An understanding of the role of the government presupposes the study of theories on its mission and how these theories have been understood and applied in various constitutional orders. Very often, referring to the political debates that elaborated the framework of a constitutional order can be helpful, always taking into consideration that these ideas evolve through time as societies evolve.
The divide in harsh punishment between various systems in the world can be studied in reference to the general socio-political context, which leads to a variability in the understanding of the role of criminal punishment see Whitman A study of the right to privacy can lead to insights concerning the entity mostly feared as likely to violate this right in different legal contexts, civil society actors or the state Whitman ; , p. A study of how anti-discrimination law operates within various legal systems can lead to conclusions on which liberties are more worthy of protection in various legal systems Suk b; a; Tourkochoriti ; A study of hate speech in Germany can enlighten the constitutional culture of that country as one that accepts limitations to free speech, in opposition to the US, where the self-understanding points towards protecting free speech see Tushnet , p.
It is also broader than this as it aims at identifying wider patterns of thought and ex ante understandings, conscious and unconscious elements at play within the understandings of jurists on the legitimate limits of a liberty within a legal system. It aims at pointing out, for instance, why judges interpreting legal clauses that seem to be close linguistically are led to divergent results in the protection of a right. Some elements of the philosophy of history are intertwined with this approach to the extent that a reflection on the philosophical meaning of historical events would make sense from a comparative point of view in reference to some broader philosophical ideas.
A comparative study that focuses on the historical context will need to discuss how different jurists, that is legal scholars, judges, legislators and the like make sense of philosophical principles and how they use the law to implement them.
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This approach inevitably implies a study of the dialectic between the is and the ought and how jurists make sense of this dialectic and implement it through the law. Hegel associates this vision with how human actors are trying to transform their reality while they are limited by what is realizable depending on the level of the maturity of reason within their societies. In the area of rights this approach would imply studying various theories of government and seeing how different political and legal actors made sense of them in order to respond to their varied sociopolitical needs.
If we accept that there is a dialectic between the is and the ought , the understanding of legal actors of these theories is conditioned by the sociopolitical needs with which they are confronted. At the same time the guidance of a principle motivates the ambition to change reality in these political and legal actors.
At a third level the researcher can refer to these abstract ideas and criticize the efforts of political and legal actors to implement them. Therefore, an effective comparative study in the area of human rights needs to focus on the study of various sociopolitical contexts and the problems they create, the reactions of legal and political actors to them and the principles that motivate the reaction of these actors.
This interdisciplinary study on all these levels, the level of reality, the level of normative principles and the way various actors make sense of these principles in order to respond to these sociopolitical problems aims to propose a wider interpretative frame that can help understand the differences in the regulation of rights and liberties in various constitutional orders.
For instance, studying the most important philosophical ideas on the role of the government at the moment of the French and the American Revolutions can elucidate why it is legitimate for the state in France to regulate the wearing of headscarves in public. The choice of a theory of government at the moment of founding a republic is dictated by concrete political and social needs. In France during the French Revolution the mission of the government was seen as ensuring that the citizens would have the necessary preconditions for the exercise of their liberties.
It was also seen as necessary to exclude religion from the public sphere. Jurists in France today understand this principle to mean that the government can regulate the extent to which citizens are allowed to wear headscarves in public. The French legislation on secularism can be understood as part of this wider perspective of state-imposed secularism that expresses disregard for individual reason.
The state helps individuals realize their liberty as they cannot realize it by themselves. The state can intervene and make sure that they are authentically free. It also means that the government is allowed to repress manifestation of religion in public. Understanding these reasons as being at the origin of regulation of wearing headscarves in public can lead to a philosophical reflection as to their permissibility today.
If the understanding on the role of the government elaborated during the French Revolution aimed at responding to concrete social and political needs, today these social and political needs may have changed. Thus, these changes may necessitate a change in the theory of government in France. It may no longer be permissible for the state to dictate to the citizens that they should not manifest their religious beliefs in public.
Doing so may lead to a number of unintended consequences that do not allow peaceful coexistence between religious groups. It can focus on engaging in a philosophical analysis enlightened by the differences in the regulation of rights, in order to propose concrete solutions for the regulation of a right.
In this approach the study of differences or similarities between different legal orders in the balancing of rights can provide stimuli for philosophical reflection on a right.
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In this approach the legal approaches under comparison would provide theoretical arguments for and against a solution in one area or another. For instance, studying the differences in the regulation of hate speech between the USA and European countries can lead to a philosophical reflection on the permissibility of hate speech. It can engage with exploring whether the American or the European solution to the problem corresponds better with principles of justice.
Hate speech leads to conflicts of rights between the person who expresses herself and the persons whom she offends with her hate speech. Which solution concerning the balancing of rights in conflict or the balancing of individual rights and collective considerations should be preferred? Different solutions to this question are motivated by different principles considered important. A philosophical analysis of the permissibility or not of the exercise of a right can be enlightened upon the rationales that jurists use in different constitutional systems to limit rights and liberties.
This approach on the normative level aims to identify principles that compose the ought , how societies should devise norms to regulate human rights issues. It is concerned with elaborating a theory of rights that can be enlightened by how and to what extent various legal systems protect these rights. For instance, studying how different countries regulate hate speech can be the basis for a philosophical reflection on the legitimate limits of free speech see Tourkochoriti a. Different legal orders have different legal evaluations of what harm is, and this can lead them to different conceptions of regulating speech, which may involve criminal sanctions, civil responsibility or even absence of stricto sensu legal consequences allowing social sanctions the room occupied elsewhere by legal sanctions.
For instance, the US legal system seems to be more reluctant than that of the European states to limit hate speech through the use of civil or criminal sanctions. Nevertheless, there are social restrictions against hate speech in the US. The practice of political correctness leads to the social isolation of those who express hateful ideas. These differences in the evaluation of social harm can stir a valuable philosophical reflection on the legitimate sphere of government action. Should it intervene in order to enforce the protection of citizens against offences caused by speech, as is the case in most European states today, or should it allow society to regulate cases such as this through other mechanisms such as social sanctions, as is arguably mostly the case in the US.
Furthermore, a comparative study of hate speech that follows this methodological approach can help refine further the crucial legal concepts. In this case, it can help reflect on the concept of hate speech itself towards a theoretical understanding of what should be understood as hate speech. This theoretical understanding will model in itself how lawyers should understand these concepts in future cases that come up, allowing them to have a more sophisticated approach to these issues. Courts around the world use various techniques to evaluate the importance of limiting or protecting rights.
Courts use balancing either to accept as legitimate the exercise of political authority in limiting the exercise of these rights or to achieve the opposite result, which is to limit the authority of the state in its efforts to limit rights Bomhoff , p. Courts refer to notions of fairness and rationality that are presented as having a universal dimension, while they are merely reflecting local understandings created on the basis of sociopolitical factors Ibid. A comparative study can explore arguments for or against each of these practices. It can thus contribute towards a philosophical exploration of government legitimacy in its efforts to limit rights.
Studying cases where there seems to be agreement across jurisdictions on the appropriate limits of a right can stir a philosophical reflection on whether a right has and should have a universal character or not. Both can be equally helpful in stirring a theoretical reflection on the need to protect a right, and under what circumstances limits to the protection of this right may be accepted. See Dannemann This approach is beyond what is commonly understood in the area of comparative law methodology as functionalism.
Functionalism aims at pointing out the role that constitutional arrangements play in a system of governance in order to identify how different constitutional provisions serve the same function in different systems. Functionalism is mostly a descriptive approach, whereas the approach proposed here is normative. The methodology proposed here aims at encouraging a theoretical reflection on how functions should be served within a constitutional system. Functionalism has been criticized as running the risk of encountering two difficulties.
First, functionalist approaches may omit some relevant variables in their effort to study common grounds among legal systems. This means that the way the law works in different legal systems is too intricate and the possibilities of any individual researcher are limited in her efforts to describe them. In the case of hate speech this would mean that the case law of the courts is too sophisticated and too intricate for a comparatist to describe it accurately across legal systems. Second, even when a limited number of additional variables are taken into account the number of cases that may be of interest turns out to be too small to support any functionalist generalization.
In the case of hate speech this may mean that it is difficult to say whether legal systems agree in the regulation of all cases of hate speech or not. The methodology proposed here is insulated from these criticisms as the study of the existing state of the law is merely the point of departure of a theoretical reflection on what the law should be. As a study of jurisprudence and not merely a study of positive law, minor deviations and nuances might actually be helpful as offering interesting arguments for a philosophical reflection.
Furthermore, unlike functionalism, this approach concerns not only similarities but also differences in the regulation of human rights. In many cases this approach can provide a theoretical reflection towards resolving cases of conflict of laws that are very relevant from a transnational perspective. For instance, the differences in data protection recently noted between the European Union and the USA Schwartz , pp. Data collectors can be either the state or private market actors. Different legal systems may protect more strictly data privacy against collection coming from private actors than against the state.
The comparatist may engage in a reflection on whether there are different dangers in the collection of data between the state and private actors and recommend solutions in both cases. Since the law is, by definition, the study of norms that regulate human behaviour and interaction, comparative law helps with this approach elaborate legal rules that can help towards problem solving in the area of protecting rights. It can lead to greater sophistication in the understanding of the legal concepts that jurists use.
It can provide insights that can be helpful to the legal argumentation of all jurists as they interpret and apply even existing legal rules within their legal system of origin. This approach can thus be helpful to lawyers in their effort to bridge the general abstract legal rules and the concrete facts to which they attempt to apply them. Once these abstract criteria of how they should understand their concepts are defined as a result of this comparison, they can then form and model how these lawyers think in their own tradition, given that there is a dialectic between how lawyers apply the law and how they will think that they should apply the law once the comparative study has been completed.
Third, a comparative law approach can combine both elements of the two previously mentioned approaches. First, it can aim to study the sociopolitical frame that led to the emergence of legal rules and challenge them in the cases where it seems that there is some flagrant injustice in the application of rules upon concrete cases of human rights. Second, it may incite a philosophical reflection on the proper regulation of a right. For instance, studying anti-discrimination law in the access to employment in the USA and European countries can lead to finding differences and similarities in the mission and the goals of anti-discrimination law.
These differences and similarities can encourage a reflection on how anti-discrimination law can be more effective. It can also lead to a better understanding of the crucial concepts that anti-discrimination law uses. And it can lead to proposing new concepts that may be more useful towards eliminating discrimination. This means that this approach can lead to a reconceptualization of the various legal tools that jurists use in Europe and the US in order to combat discrimination in the access to employment. This approach, shares with the first approach discussed in Section 3. It aims at proposing a theoretical framework for understanding similarities and differences in the protection of rights among various legal orders.
This framework will also help evaluate the existing regulations. A study of this kind focuses on the existing legal structure as well as the theoretical basis upon which it rests. Interdisciplinarity in this area means engaging with research in the social sciences, which can help understand the political and social purposes of legal rules. In this sense a comparative study aims to show overall how problems that have emerged in one jurisdiction are addressed in another Glendon et al. This approach aims at highlighting the different sensibilities concerning pressing concerns on rights and at evaluating them.
Comparative law entails an interdisciplinary approach and a focus on context, the structural and contextual background to the rules under comparison Palmer The study will focus on the structure of the relevant concepts, their emergence and philosophical underpinnings. Further, this approach uses the second approach, discussed in Section 3. This back and forth movement can allow for a normative understanding of human rights law that has real-world applications and is not construed too ideally. It can also lead to reconceptualizing see Brand , p. In this case the aims of the study are to challenge the existing philosophical and sociopolitical frames that lead to legal differences in reference to new case studies in order to propose changes in the way of thinking of various legal and political actors.
For instance, a study against discrimination in the access to employment in the U. A study of comparative anti-discrimination law can aim to highlight the different sensibilities of anti-discrimination law in the US and the EU and to evaluate them. Understanding the philosophy inspiring the legal rules will help evaluate the exceptions to the rules against discrimination. For instance, the primacy given to freedom of religion in the US, owing to concrete philosophical, historical and social reasons, may lead to interpreting the exceptions to the rules against discrimination in a way that makes anti-discrimination law meaningless.
The US Supreme Court has accepted that under the rule of the ministerial exception, religious institutions can be exempt from the application of disability anti-discrimination law.
The study of the sociopolitical context that led a legal system to giving priority to protecting one category of rights will lead the researcher to a deeper understanding of why the US gives priority to protecting some rights to the detriment of others. It may also incite a normative reflection as to whether the ideology that inspired this state of the law is just and still relevant today. For instance, in the case of balancing religious autonomy versus enforcing disability anti-discrimination law, the need to protect minority religious communities, which was compelling during the founding era in the US, may have to cede to the compelling need to protect other social groups today such as the disabled.
A similar argument can be made once the researcher has engaged in a normative enterprise on the importance of enforcing disability anti-discrimination law. For the study of anti-discrimination law the study of the cultural values that lead to discrimination is very important in view of addressing solutions. In parallel, research on discrimination from a social and political theory perspective can enlighten further the importance of legal intervention in concrete areas.
Situating the rules of anti-discrimination law in the social and political context that has produced them can help criticize these rules in view of improving them with the aim of promoting social change. The comparison of how the rules are working in practice will allow the researcher to develop criteria for how they should be operating. Although Rawls uses the concept in moral theory to describe a way of reasoning from moral intuitions to moral principles founded on reason, I use it here in the dialectic between the is and the ought.
In this context it means a back and forth movement from the operation of legal rules to how they should be operating. The study of the operation of human rights law in various legal contexts will provide insights into how they should be operating and serve as a basis for guidance in future cases. This will be a back and forth movement from the formation and operation of the rules in their context to the principle and the other way around.
This back-and forth movement can allow for a normative understanding of rights protection that has real-world applications. As Geoffrey Samuel notes, this approach is simultaneously based on a deconstruction of the current understandings of legal concepts and reconstruction of doctrinal analysis concerning how rules should be understood and applied in concrete legal cases Samuel , pp. As such, this approach can make a significant contribution to jurisprudence. For instance, in the case of anti-discrimination law, the American legal system protects more strictly against discrimination in the exercise of negative liberties such as freedom of religion.
European states protect less against discrimination in the exercise of negative freedoms and more against discrimination in positive freedoms Suk b; Tourkochoriti ; According to legal positivism, law is synonymous with positive norms, that is, norms made by the legislator or considered as common law or case law. Legal positivism does not base law on divine commandments, reason, or human rights. Legal positivism does not imply an ethical justification for the content of the law, nor a decision for or against the obedience to law.
Positivists do not judge laws by questions of justice or humanity, but merely by the ways in which the laws have been created. This includes the view that judges make new law in deciding cases not falling clearly under a legal rule. Practicing, deciding or tolerating certain practices of law can each be considered a way of creating law. Within legal doctrine, legal positivism would be opposed to sociological jurisprudence and hermeneutics of law, which study the concrete prevailing circumstances of statutory interpretation in society.
The pedigree thesis asserts that legal validity is a function of certain social facts. Borrowing heavily from Jeremy Bentham , John Austin argues that the principal distinguishing feature of a legal system is the presence of a sovereign who is habitually obeyed by most people in the society, but not in the habit of obeying any determinate human superior Austin , p. On Austin's view, a rule R is legally valid that is, is a law in a society S if and only if R is commanded by the sovereign in S and is backed up with the threat of a sanction.
The severity of the threatened sanction is irrelevant; any general sovereign imperative supported by a threat of even the smallest harm is a law. Austin's command theory of law is vulnerable to a number of criticisms. One problem is that there appears to be no identifiable sovereign in democratic societies. In the United States, for example, the ultimate political power seems to belong to the people, who elect lawmakers to represent their interests. Elected lawmakers have the power to coerce behavior but are regarded as servants of the people and not as repositories of sovereign power. The voting population, on the other hand, seems to be the repository of ultimate political authority yet lacks the immediate power to coerce behavior.
Thus, in democracies like that of the United States, the ultimate political authority and the power to coerce behavior seem to reside in different entities. A second problem has to do with Austin's view that the sovereign lawmaking authority is incapable of legal limitation. On Austin's view, a sovereign cannot be legally constrained because no person or body of persons can coerce herself or itself. Since constitutional provisions limit the authority of the legislative body to make laws, Austin is forced to argue that what we refer to as constitutional law is really not law at all; rather, it is principally a matter of "positive morality" Austin , p.
Austin's view is difficult to reconcile with constitutional law in the United States. Courts regard the procedural and substantive provisions of the constitution as constraints on legal validity. The Supreme Court has held, for example, that "an unconstitutional act is not a law; it confers no rights; it imposes no duties; it is, in legal contemplation, as inoperative as though it had never been passed. Shelby County , U. Moreover, these constraints purport to be legal constraints: the Supremacy Clause of Article VI of the Constitution states that "[t]his Constitution The most influential criticisms of Austin's version of the pedigree thesis, however, owe to H.
Hart's seminal work, The Concept of Law. Hart points out that Austin's theory provides, at best, a partial account of legal validity because it focuses on one kind of rule, namely that which requires citizens "to do or abstain from certain actions, whether they wish to or not" Hart , p. While every legal system must contain so-called primary rules that regulate citizen behavior, Hart believes a system consisting entirely of the kind of liberty restrictions found in the criminal law is, at best, a rudimentary or primitive legal system.
On Hart's view, Austin's emphasis on coercive force leads him to overlook the presence of a second kind of primary rule that confers upon citizens the power to create, modify, and extinguish rights and obligations in other persons. As Hart points out, the rules governing the creation of contracts and wills cannot plausibly be characterized as restrictions on freedom that are backed by the threat of a sanction. These rules empower persons to structure their legal relations within the coercive framework of the law-a feature that Hart correctly regards as one of "law's greatest contributions to social life.
But what ultimately distinguishes societies with full-blown systems of law from those with only rudimentary or primitive forms of law is that the former have, in addition to first-order primary rules, secondary meta-rules that have as their subject matter the primary rules themselves:. They specify the way in which the primary rules may be conclusively ascertained, introduced, eliminated, varied, and the fact of their violation conclusively determined Hart , p.
Hart distinguishes three types of secondary rules that mark the transition from primitive forms of law to full-blown legal systems: 1 the rule of recognition, which "specif[ies] some feature or features possession of which by a suggested rule is taken as a conclusive affirmative indication that it is a rule of the group to be supported by the social pressure it exerts" Hart , p.
On Hart's view, then, every society with a full-blown legal system necessarily has a rule of recognition that articulates criteria for legal validity that include provisions for making, changing and adjudicating law. Law is, to use Hart's famous phrase, "the union of primary and secondary rules" Hart , p. Austin theory fails, on Hart's view, because it fails to acknowledge the importance of secondary rules in manufacturing legal validity. Hart also finds fault with Austin's view that legal obligation is essentially coercive. According to Hart, there is no difference between the Austinian sovereign who governs by coercing behavior and the gunman who orders someone to hand over her money.
In both cases, the subject can plausibly be characterized as being "obliged" to comply with the commands, but not as being "duty-bound" or "obligated" to do so Hart , p. On Hart's view, the application of coercive force alone can never give rise to an obligation-legal or otherwise. Legal rules are obligatory, according to Hart, because people accept them as standards that justify criticism and, in extreme cases, punishment of deviations:. What is necessary is that there should be a critical reflective attitude to certain patterns of behavior as a common standard, and that this should display itself in criticism including self-criticism , demands for conformity, and in acknowledgements that such criticism and demands are justified, all of which find their characteristic expression in the normative terminology of 'ought', 'must', and 'should', and 'right' and 'wrong' Hart , p.
The subject who reflectively accepts the rule as providing a standard that justifies criticism of deviations is said to take "the internal point of view" towards it. On Hart's view, it would be too much to require that the bulk of the population accept the rule of recognition as the ultimate criteria for legal validity: "the reality of the situation is that a great proportion of ordinary citizens-perhaps a majority-have no general conception of the legal structure or its criteria of validity" Hart , p.
Instead, Hart argues that what is necessary to the existence of a legal system is that the majority of officials take the internal point of view towards the rule of recognition and its criteria of validity. All that is required of citizens is that they generally obey the primary rules that are legally valid according to the rule of recognition.
Thus, on Hart's view, there are two minimum conditions sufficient and necessary for the existence of a legal system: "On the one hand those rules of behavior which are valid according to the system's ultimate criteria of validity must be generally obeyed, and, on the other hand, its rules of recognition specifying the criteria of legal validity and its rules of change and adjudication must be effectively accepted as common public standards of official behavior by its officials" Hart , p.
Hart's view is vulnerable to the same criticism that he levels against Austin. Hart rejects Austin's view because the institutional application of coercive force can no more give rise to an obligation than can the application of coercive force by a gunman. But the situation is no different if the gunman takes the internal point of view towards his authority to make such a threat. Despite the gunman's belief that he is entitled to make the threat, the victim is obliged, but not obligated, to comply with the gunman's orders. The gunman's behavior is no less coercive because he believes he is entitled to make the threat.
Similarly, in the minimal legal system, only the officials of the legal system take the internal point of view towards the rule of recognition that endows them with authority to make, execute, adjudicate, and enforce the rules. The mere presence of a belief in the officials that they are entitled to make law cannot give rise to an obligation in other people to comply with their enactments any more than the presence of a belief on the part of a gunman that he is entitled to issue orders gives rise to an obligation in the victim to comply with those orders.
Problems at the Roots of Law: Essays in Legal and Political Theory
Hart's minimal legal system is no less coercive than Austin's legal system. The second thesis comprising the foundation of legal positivism is the separability thesis. In its most general form, the separability thesis asserts that law and morality are conceptually distinct. This abstract formulation can be interpreted in a number of ways. For example, Klaus Faber interprets it as making a meta-level claim that the definition of law must be entirely free of moral notions. This interpretation implies that any reference to moral considerations in defining the related notions of law, legal validity, and legal system is inconsistent with the separability thesis.
More commonly, the separability thesis is interpreted as making only an object-level claim about the existence conditions for legal validity. Hart describes it, the separability thesis is no more than the "simple contention that it is in no sense a necessary truth that laws reproduce or satisfy certain demands of morality, though in fact they have often done so" Hart , pp.
Insofar as the object-level interpretation of the separability thesis denies it is a necessary truth that there are moral constraints on legal validity, it implies the existence of a possible legal system in which there are no moral constraints on legal validity. Though all positivists agree there are possible legal systems without moral constraints on legal validity, there are conflicting views on whether there are possible legal systems with such constraints.
According to inclusive positivism also known as incorporationism and soft positivism , it is possible for a society's rule of recognition to incorporate moral constraints on the content of law. Prominent inclusive positivists include Jules Coleman and H. Hart, who maintains that "the rule of recognition may incorporate as criteria of legal validity conformity with moral principles or substantive values In contrast, exclusive positivism also called hard positivism denies that a legal system can incorporate moral constraints on legal validity.
Exclusive positivists like Joseph Raz , p. On this view, the sources of law include both the circumstances of its promulgation and relevant interpretative materials, such as court cases involving its application. At first glance, exclusive positivism may seem difficult to reconcile with what appear to be moral criteria of legal validity in legal systems like that of the United States. For example, the Fourth Amendment provides that "[t]he right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures, shall not be violated. Taken at face value, these amendments seem to make moral standards part of the conditions for legal validity.
Exclusive positivists argue that such amendments can require judges to consider moral standards in certain circumstances, but cannot incorporate those standards into the law. When a judge makes reference to moral considerations in deciding a case, she necessarily creates new law on an issue-and this is so even when the law directs her to consider moral considerations, as the Bill of Rights does in certain circumstances.
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On this view, all law is settled law and questions of settled law can be resolved without recourse to moral arguments:. The law on a question is settled when legally binding sources provide its solution. In such cases judges are typically said to apply the law, and since it is source-based, its application involves technical, legal skills in reasoning from those sources and does not call for moral acumen.
If a legal question is not answered by standards deriving from legal sources then it lacks a legal answer-the law on such questions is unsettled. In deciding such cases courts inevitably break new legal ground and their decision develops the law Naturally, their decisions in such cases rely at least partly on moral and other extra-legal considerations Raz , pp. If the judge can resolve an issue involving the First Amendment merely by applying past court decisions, then the issue is settled by the law; if not, then the issue is unsettled.
Insofar as the judge looks to controversial moral standards to resolve the issue, she is going beyond the law because the mere presence of controversy about the law implies that it is indeterminate. Thus, on Raz's view, references to moral language in the law, at most, direct judges to consider moral requirements in resolving certain unsettled questions of law. They cannot incorporate moral requirements into the law. Third thesis commonly associated with positivism is the discretion thesis, according to which judges decide difficult cases by making new law in the exercise of discretion.
Ronald Dworkin describes this thesis as follows:. The set of these valid legal rules is exhaustive of 'the law', so that if someone's case is not clearly covered by such a rule. On this view, a judge cannot decide a case that does not fall clearly under a valid rule by interpreting or applying the law; she must decide the case by creating or promulgating a law that did not exist prior to the adjudication.
Thus, the discretion thesis implies that judges are empowered with a quasi-legislative lawmaking authority in cases that cannot be decided merely by applying law. Though often associated with positivism, the discretion thesis does not belong to positivism's theoretical core. The pedigree and separability theses purport to be conceptual claims that are true of every possible legal system. These two claims jointly assert that, in every possible legal system, propositions of law are valid in virtue of having been manufactured according to some set of social conventions.
The second section focuses on discourse analysis so as to enucleate the three different meanings of citizenship that we find in the current debate according to the prevailing disciplinary fields: political, legal and social sciences. Thirdly, attention will be directed to the composition of the different semantic areas that are connected to the term citizenship.
I suggest that we are now dealing with a threefold notion. This duality has fascinated many in the course of time. As some thousand people born in other parts of ex-Yugoslavia applied for citizenship, on February 26 th , tens of thousands were deleted from those official records. Again, many fell through the net. With the identity, he simultaneously lost the fatherhood.
Rather, it is an interesting issue because it seems to revive the theory of citizenship elaborated by Hannah Arendt almost half a century ago, when she claimed that human rights, that were supposed to be inalienable, proved to be ineffective, even in States where the constitution was based upon them, when a certain number of people appeared who were not citizens of any sovereign state.
However, at least at the level of normative commitment, the post-war period still marks a significant decoupling of human rights from citizenship. Until a few years ago not a single line on citizenship was generally found in handbooks, encyclopedias and dictionaries dedicated to political thought or to social sciences.
Yet, the understanding of citizenship often lingers on more traditional assessments, characterised by clear-cut disciplinary divides. The result has been that attempts to bridge the various perspectives at hand continue to meet increasing difficulties. In fact, legal scholars hardly ever take into consideration sociological case-studies, while political scientists turn a blind eye to issues addressed in international private law and so on.
Of greater weight are some of the misinterpretations embedded in the debate, which seem to be far too common on both sides. Certainly, all the emphasis laid on citizenship has brought the notion into the limelight. However, there are some negative effects linked to this evolution. This leads to a conceptual overstretch that deprives citizenship of its specific political and legal meanings. Moreover, the limelight on citizenship has also contributed to loosening up the fundamental difference between status civitatis and status personae. In the current debate, the two figures of citizenship and personhood seem to be exceedingly confused.
An interesting statement is for example that T.
There seems to be a very peculiar form of inflation behind this blurring of genres, which consists of trying to entitle the citizen to a long list of rights, which in reality has a quite different reference, namely the person as such. This is why it is important to clarify the conditions enabling a specific right to be plausibly referred to the category of citizenship.
Therefore, discourse analysis is an important tool so as to unpack in proper detail the very notion of citizenship. Unless we are content to regard a vague level of discussion as the default position, we need detailed analysis into the concept and an empirical investigation into its various modes of utilization in our discourses. And it is our task to check whether this word is an accurate signum , if it grasps a specific configuration of the world or if it only projects desires.
We need to keep these different meanings apart since they obey different sets of rules in the use we make of them.
Instead, we shall ask what is opposed to citizenship. How does the negative image look? I shall now illustrate the composition of these three semantic areas, by explaining for each one the structure and content of the basic dichotomy; from where it originates historically; and what kind of problems it is thought to resolve.
Problems at the Roots of Law: Essays in Legal and Political Theory
Then I will recall briefly in what way some crucial problems that we face in Europe today are connected to the three different ways of understanding citizenship. The citizen is determined by some form of ius activae civitatis. More specifically, we might say that the political understanding of citizenship is related to the principle of affectedness , a key tenet of democratic theory, according to which people should have a fair say on decisions affecting them.
Indeed, the traditional legal perspective holds citizenship unequivocally to be the status conferred upon those who are entitled to various active and passive positions in relation to the State. This is also why this understanding is compatible with most political regimes, regardless of the democratic tenure of the constitutional framework.
In the long history of the legal civis , the problem of entitlement has been connected to the extension of the legal order and its homogeneity. Most bilateral treaties in international private law, as well as international agreements tend to avert that specific situation.
Convention on the citizenship of married women, signed on the 29 th of January in New York. The main instrument for preventing potential conflict is still constituted by bilateral treaties, that remain a very time-consuming and rigid tool for fixing the many hard cases that arise. It only implies that the means through which Jurisprudence hoped to solve the issue have, to some extent, failed.
Here, the content of its basic dichotomy varies, as well as its structure. Rather, it is the marginalised individual or the excluded person, as developed by Robert Ezra Park 33 and Gino Germani. The social status is the position, ascribed or acquired, that the person occupies in the social stratification of a group in relation to various social norms — such as primarily material goods, work position, cultural know-how, power arrangements, etc.
This means that we can point out intermediate positions in-between maximal exclusion and full integration in society.