Critical Legal Positivism

Kaarlo Tuori

• Publisher: Routledge
• Year: 2017
• ISBN:
  9781351947329
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

This profound and scholarly treatise develops a critical version of legal positivism as the basis for modern legal scholarship. Departing from the formalism of Hart and Kelsen and blending the European tradition of Weber, Habermas and Foucault with the Anglo-American contributions of Dworkin and MacCormick, Tuori presents the normative and practical faces of law as a multilayered phenomenon within which there is an important role for critical legal dogmatics in furthering law's self-understanding and coherence. Its themes also resonate with importance for the development of the European legal system.

III
The Aspects and the Levels of the Law

Chapter 5
The Two Faces of the Law

Norms and practices

The law has two faces. On the one hand, it can be approached as a set of norms, as a legal order, this is the aspect with which typical lawyers in their spontaneous positivism equate the law. However, there is also another aspect to the law: it can also be examined as a set of specific social practices, as legal practices. These two aspects of the law are in constant interaction. Legal practices could not exist without legal norms. Legal norms define certain social practices as legal practices, as, for instance, law-making or adjudication (constitutive legal norms), and guide the conduct of the agents of these practices, like that of members of parliament or judges (regulative legal norms). But, by the same token, nor could the legal order exist without legal practices, which are responsible for its production and reproduction. When a term is needed which covers both of the law's aspects, legal system is a suitable candidate. In the usage I shall make of this term, no allusions to any system-theoretical position are intended.

The distinction between norms and practices may seem self-evident to us who share the modern western legal experience. However, the very possibility of making such a distinction is the result of historically determined conditions. Only at a certain point in legal development does there emerge the conception of a legal norm as something which cannot be reduced to the behaviour of the members of the community or to the decisions of those wielding adjudicative power. The emergence of modern law is often described as an outcome of specific processes of differentiation; let us only recall Max Weber's historically-oriented sociology of law. One of these processes of differentiation consists in the separation of norms and practices. Furthermore, an internal differentiation arises within both these poles, within the set of norms and within legal practices.

According to Weber, the formal rationality of adjudication presupposes that only general and public norms are applied. Only then can adjudication be predictable as required by purposive-rational economic and bureaucratic action. For Weber, the conception of a norm as distinct from individual legal decisions initiates the development which eventually leads to the systematic legal order characteristic of modern law. At the stage of generalisation general legal propositions are derived from the solutions to individual cases, in juridical construction legal institutions are formed from legal propositions, until the stage of systematisation in the proper sense of the term is reached (Weber 1978a, p. 656).

Weber also analysed the division of labour between legal practices. Under the conditions of modern law, the creation of law is based on systematic enactment. The application of law, in turn, is entrusted to professional lawyers. Systematic enactment and professional adjudication, relying on the specific juridic method of the logical interpretation of meaning, support for their part the formal rationality of modern law. Legal science, established institutionally in universities, also makes its contribution to this rationality. Particularly important is its task to ensure the systematic nature of the legal order.

Weber's analysis has interesting parallels with H. L. A. Hart's (1980, p. 89 ff.) outline of the transition from a primitive system of norms to a developed legal system. The primitive norm system includes only primary rules which directly regulate the conduct of the members of the community. Such a system has three defects: uncertainty about the rules and their contents, the static character of the rules and the inefficacy of the social pressure upholding them. These defects can be remedied through secondary rules: the problem of substantive uncertainty through a rule of recognition, the problem of inertia through rules of change and the problem of inefficacy through rules of adjudication. Secondary rules in Hart's sense are a necessary prerequisite for the detachment of legal norms from legal practices and for the specialisation of practices such as law-making and adjudication in their respective tasks.

The ontological problem of legal normativity

Let us begin the closer examination of the law's two aspects with the law as a legal order. Legal norms are demarcated through specific legal criteria of validity. On this point, there exists an agreement between, say, the sociologist Weber, Kelsen and Hart as representatives of traditional legal positivism, the legal realist Alf Ross, as well as Alexy and Günther as advocates of Habermas' discourse theory. However, this apparent unanimity is deceptive. Legal validity is a contested concept, and several rival theories of validity have been propounded. These theories can be divided into two broad groups, normative and realist, although a particular theory can accommodate both normative and realist elements. Hart, like Kelsen, starts off from within a normative framework and derives the validity of individual norms from hierarchically higher-order norms. But at the level of the rule of recognition, his theory takes a step towards realistic direction: the rule of recognition, which ultimately determines the validity of legal norms, is not only a normative rule but also an empirical regularity.

I shall take a closer look at the legal criteria of validity in Chapter 9 and try to argue for a version of normative validity theory. The conception I shall propound is also positivistic, although in my presentation of critical positivism the positivity of the law is understood differently from Kelsen's pure theory of law. The insight into the multi-layered nature of the law enables us to part company with the transcendental basic norm which Kelsen was forced to postulate at the very top of his norm pyramid.

A normative theory of validity seems to entail difficult ontological problems; the assumption of a specific normative sub-field of reality easily arouses suspicions of a metaphysical fallacy. Thus, sober-minded ontological realists within legal theory have repeatedly attempted to define legal norms through empirically observable characteristics; some scholars have even abandoned the very distinction between legal norms and legal practices. In American realism, the law was reduced to the decision-making of the courts and defined either as the rules the judges in fact applied or as their actual behaviour (Summers 1982). But definitions like these do not succeed in effacing the normative element from the law. Normative criteria are needed for the very identification of the persons, that is, the judges, whose decision-making is at issue. Courts and judges are institutional facts that do not exist independently of the interpretative scheme which is provided by legal norms and through which empirically observable reality is portrayed.

Interestingly enough, Ross, the central figure of Scandinavian realism, criticised American realism from a position very close to the theory of institutional facts. Ross (1946, pp. 61-62) argued that 'court' and 'judge' are legally determined concepts: 'The judge bears no divine mark on his forehead investing him as judge. The quality of being a judge is itself legally conditioned.' As Markku Helin (1988, p. 143) has rephrased Ross' argument, 'the law cannot be exhaustively defined through the behaviour of judges, because in order to know who is a judge, we must already have knowledge of the legal order'.

Ross reproached American realism for not being able to free itself from the dualism afflicting legal concepts. The law is understood both as something existing and as something normative, obliging, as an inhabitant of both the world of 'Is' and the world of 'Ought'. Ross' empiricist ontology did not allow for such a dualism. He attempted to dissolve it by reducing the obliging element to a social psychological fact. What is decisive for the validity of legal norms are the dispositions prevailing among the judges: the judicial ideology. Thus, according to Ross, a statement about the validity of a legal norm is a statement about the world of facts, and as such it can be submitted to empirical verification or falsification (Ross 1958, p. 34 ff.).

Ross possessed a richer legal ontology than his American realist colleagues: in addition to empirically observable behaviour, he depicted in the law a social psychological, ideological element. For him, the judicial ideology was a fact meeting the criteria of empiricist philosophy of science, although it, unlike the behaviour of the judges, could not be immediately cognised through empirical observation. But it is difficult to see how Ross could have succeeded where American realists had failed, in effacing the allegedly metaphysical world of 'Ought' and in reducing the normativity of the law to observable facts. Ross' critique of his American colleagues can be turned against his own reduction. The judges, whose ideology is supposed to determine the truth-value of statements on the validity of legal norms, can only be identified through legal norms regulating the status of a judge. Judges are institutional facts, and institutional facts do not exist without norms functioning as interpretative schemes.

In the following, I shall try to defend the view that the legal order, that is, the law as a symbolic normative phenomenon, constitutes a specific ontological sub-field. However, this sub-field is dependent on 'social reality', on particular social practices. These social practices not only produce the legal order but even its further existence presupposes their reproducing effect. The ontological existence and the production and reproduction of the legal order cannot be divorced from each other: without continuous reinforcement through legal practices, the legal order as a symbolic normative phenomenon would lose its necessary ontological support.

Kelsen and Hart assumed an independent ontologieai sub-field of the legal 'Ought'. For Kelsen the Neo-Kantian, the separation of the worlds of 'Is' and 'Ought' was immediately, transcendentally given: 'The difference between is and ought cannot be explained further. We are immediately aware of the difference' (Kelsen 1970, p. 5). However, he was also puzzled by the problem of the establishment of legal normativity, of the transition from the world of 'Is' to that of the legal 'Ought'. The same problem recurs in Hart's The Concept of Law. Kelsen's basic norm and Hart's rule of recognition were supposed not only to cut off the regress of the hierarchical chain of legal validity and indicate the ultimate validity basis for legal norms. These 'master rules' were also supposed to account for the emergence of legal normativity. This function of the basic norm and the rule of recognition is often ignored. But in fact, in both Kelsen's and Hart's version of traditional legal positivism, legal normativity, aided through the basic norm or the rule of recognition, in a way arises from empirical social reality, from the social 'Is'.

Kelsen anticipated the institutional theory of law when, in the opening pages of his Pure Theory of Law, he explained how a set of facts belonging to the world of 'Is' receives its legal significance:

The external fact whose objective meaning is a legal or illegal act is always an event that can be perceived by the senses (because it occurs in time and space) and therefore a natural phenomenon determined by causality. However, this event as such, as an element of nature, is not an object of legal cognition. What turns this event into a legal or illegal act is not its physical existence, determined by the laws of causality prevailing in nature, but the objective meaning resulting from its interpretation. The specifically legal meaning of this act is derived from a 'norm' whose content refers to the act; this norm confers legal meaning on the act, so that it may be interpreted according to this norm. The norm functions as a scheme of interpretation (Kelsen 1970, pp. 3-4).

The topmost level of the Stufenbau of the posited legal order is occupied by the constitution. Here the question of the norm-creating power of empirical social facts repeats itself: what confers the legal meaning upon the constitution-giving act? For Kelsen, the answer can only lie in the hypothetical basic norm, which must be presupposed in order for the constitution to receive its legal significance and for the legal normativity to be established. Thus, the basic norm opens the road from the empirical social reality of norm-giving acts to the world of the legal 'Ought'. As Uta Bindreiter (2000) has pointed out in her doctoral thesis, the German word voraussetzen alludes to the normativity-establishing function which the transcendental basic norm, in addition to the epistemological one, fulfils in Kelsen's pure theory of law. The basic norm must be voraus-setzt, preposited, in order for norm-creating acts to be possible in social reality.

Hart's rule of recognition has a similar function. The rule of recognition anchors legal normativity in empirical regularities, to be observed in adjudication. But here too we can point to a linguistic dual sense which carries an important substantive message. 'Recognition' is not only a synonym for 'identifying' but also for 'accepting'. The social reality to which Hart's rule of recognition refers does not consist merely of judges' and other officials' identifying valid rules but includes an element of acceptance. According to Hart, the officials adopt an internal point of view on the rule of recognition, and this implies on their part an acceptance of this rule and, through it, the legal order it demarcates. In Hart's conception, legal normativity can be understood to be supported by the empirical legitimacy that the legal order commands among the officials of the legal system. It is true, though, that Hart himself emphasises that the internal point of view on rules does not necessarily involve a morally-based acceptance (Hart 1980, pp. 198-199; cf. Bayles 1992, pp. 78-79).

In Kelsen's and Hart's theories of legal validity, there is yet one more link between legal normativity and social reality. Both Kelsen and Hart understood efficacy as a precondition for legal validity: if the legal order is not by and large effective, there is no sense in presenting statements on legal validity. The role of efficacy in the theory of validity implies that the ontological existence of legal normativity is dependent on sustaining social practices.

Thus, traditional legal positivism contains elements which could be elaborated to account for the interplay of the law's two aspects, i.e. the law as a legal order and the law as legal practices: Kelsen's concurrence with the idea of institutional facts and the at least implicit understanding of the legal order's need of supportive social practices. But if the empiristic ontology of Ross prevented him from proceeding further in the direction of the theory of institutional facts, Kelsen remained a prisoner of his transcendentallyfounded, dichotomous ontology. Within the Haitian theory, by contrast, Neil MacCormick – together with Ota Weinberger – has supplied an explicit formulation for an institutional theory of law (MacCormick – Weinberger 1986). I shall build on this formulation in my attempt to show how the idea of institutional facts can help us to provide a non-metaphysical account of the ontological existence of legal normativity, of the continuous production and reproduction of this normativity.

Law as an institutional fact

MacCormick's and Weinberger's institutional theory of law has taken its concept of institutional fact from John R. Searle and, through him, from G.E.M. Anscombe. Brute facts consist of physical or mental entities and states of affair. But not all the facts upon which true propositions can be made are brute facts. There is also another class of facts which cannot be reduced to physical or mental states of affairs – facts whose existence presupposes human institutions consisting of normative rules: 'Mr. Smith married Miss Jones; the Dodgers beat the Giants three to two in eleven innings; Green was convicted of larceny; and Congress passed the Appropriations Bill', to quote Searle's (1988, p. 51) examples.

Such facts whose existence presupposes human institutions, i.e. normative rules, are institutional facts (Searie 1988, pp. 50-53). A true statement on an institutional fact is not true 'simply because of the condition of the material world and the causal relationships obtaining among its parts'; it is true 'in virtue of an interpretation of what happens in the world, an interpretation of events in the light of human practices and normative rules' (MacCormick – Weinberger 1986, p. 10). Institutional facts are interpreted facts; normative rules constitute the scheme of interpretation.

In what sense, then, is law an institutional fact? MacCormick (1986a, pp. 49-54) distinguishes between legal institutions and their instances. Take marriage as an example. The institution of marriage consists of institutive, consequential and terminative rules regulating the solemnisation of marriage, its legal effects and its annulment. When Mr Smith and Miss Jones get married according to the institutive rules of marriage, their subsequent marriage is an instance of the institution of marriage. It is such instances of legal institutions as the marriage of Mr and Mrs Smith that the institutional theory of law calls institutional facts 'in a philosophical sense'. An act performed in compliance with the institutive rules concerning marriage gives rise to marriage as an institutional fact, i.e. as an instance of the institution of marriage.

Legal institutions, as sets of institutive, consequential and terminative rules, must precede their instances, otherwise it would be impossible to recognise the latter as institutional facts (MacCormick 1986a, 55). But the institutional theory of law culminates in the contention that institutional facts include the legal rules of which legal institutions are composed: '... the existence of a valid rule of law, as of a valid contract, is a matter of institutional fact in the philosophical sense' (MacCormick 1986a, 56). Laws, for example, are instances of the institution that comprises the rules regulating their enactment, their legal effects and the termination of their validity.

It seems obvious that in the institutional theory of law, the concept of institutional fact has been expanded beyond its original sense: in the institutional theory of law, the concept no longer covers (just) a combination of rules and brute facts but (also) applies to mere rules, to schemes of interpretation. Only legislative acts interpreted in the light of the legal norms regulating legislative procedure are institutional facts in the sense of combining brute facts and normative interpretative schemes, not the (formally) valid legal rules which these acts produce. A similar comment holds good for insta...