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Theories of law
Customary law family
In the customary law family countries, certain patterns of behaviour (or customs) are accepted as legal rules of conduct. These are, as a rule, unwritten and are frequently distributed by elders, passed down from generation to generation. Customary law practices can be observed in the mixed national legal systems family countries, where they have combined with the elements of the civil law or common law families. The infuence of the customary law family may be seen in some Asian and African nations.
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Religious law family
In the religious legal family countries, the law originates from the religious texts and traditions (for instance, nowadays, the Islamic law tradition countries).
Mixed national legal systems family
In the mixed national legal systems family states, two or more of the previously mentioned legal families operate together.
The interplay between the legal families
These different families of national law crosscut each other’s boundaries and operate under permanent interaction, sharing each other’s experience and, at times, departing from the original trademark characteristics.
philosophy of law natural law legal theory legal positivism law of nature positive law rule of the reason The Unanimous Declaration of the Thirteen United States of America ordinance of reason just law legal validity problem legal realism critical legal theory normative theory law as integrity divine law
Primary schools of thought
There are two prominent schools of thought in the philosophy of law of the Western legacy – natural law legal theory and legal positivism.
Natural law school of thought
The origination of the natural law legal theory is usually associated with the philosophy of ancient Greece3 and Rome. It was the most infuential legal theory in Europe until the rise of legal positivism. Over the long history of its development, numerous authors (in this context, usually labelled as the naturalists) developed a great variety of different approaches and conclusions. Nevertheless, some general characteristics of the natural law approach can still be identif ed.
In brief, the natural law school of thought distinguishes the law of nature (also referred to as the natural law)4 from positive law. The frst is pre-existent to the positive law (the natural law is also regarded as the higher law) and is the universal rule of the reason (or a body of the universal and general rules of the reason), which is independent of the will of human authority. In the case of positive law, on the other hand, legal norms are established by the rulers.
The naturalists fnd the source of the natural law in God, in nature of human (a universalised conception of human nature), or in the idea of justice and, in all cases, refer to reason.
The vital function of the natural law is to establish a valid order as opposed to the arbitrariness of the rulers. At the same time, the naturalists claim that all the legal norms establish a rational standard for conduct, and, by def nition, they must be reasonable.5
The substantive and procedural natural law
The rule of reason may be discovered either in terms of the substantial meanings (answering the question ‘What shall be the content of the law?’) or procedural understandings (answering the question ‘How is a law made?’).
As prominently articulated by a well-known scholar, Lon L. Fuller (1902–1978), who contributed to the rethinking of the naturalist approach in the twentieth century, ‘we may
3 ‘The philosophers of ancient Greece, where the idea of natural law originated, considered that there was a kind of perfect justice given to man by nature and that man’s laws should conform to this as closely as possible.’ ibid 326. 4 In this context, the terms ‘law of nature’ and ‘natural law’ do not refer to the physical laws of nature – the laws that science aims to describe (such as Newton’s so-called laws of motion). 5 As James Leslie Brierly wrote, ‘it has to be admitted that natural law implied a belief in the rationality of the universe which seems to us to be exaggerated. It is true that when medieval writers spoke of natural law as being discoverable by reason, they meant that the best human reasoning could discover it, and not, of course, that the results to which any and every individual’s reasoning led him was natural law.’ James
Leslie Brierly, The Law of Nations: An Introduction to the International Law of Peace, Humphrey Waldock (ed) (6th edn, Oxford University Press 1972) 20.
speak of a procedural, as distinguished from a substantive natural law. What I have called the internal morality of law is in this sense a procedural version of natural law.’6
The substantive or traditional natural law theory
According to Thomas Hobbes (1588–1679), the frst and fundamental law of nature (he fnally enunciates 20 laws of nature which are the precepts or the general rules of reason) stipulates that ‘every man ought to endeavour peace, as far as he has hope for obtaining it; and when he cannot obtain it, that he may seek, and use, all helps, and advantages of war’.7 The frst branch of the rule contains the frst and fundamental law of nature, which is ‘to seek peace and follow it’, and the second branch is ‘the sum of the right of nature, which is: by all means we can to defend ourselves’.8
For John Locke (1632–1704), the law of nature is reason in itself (‘reason, which is that law’), ‘stands as an eternal rule to all men, legislators as well as others’, and thus represents the will of God (‘of which that is a declaration’).9 According to John Locke, the substantial content of the law of nature is to ‘preserve oneself and the rest of mankind’.
The outstanding refection of natural law theory can be discovered in The Unanimous Declaration of the Thirteen United States of America (July 4, 1776):
When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the Pursuit of Happiness.
The procedural naturalism
Lon L. Fuller developed eight ‘principles of legality’, which constitute the ‘inner morality of law’ and, therefore, are placed into the very concept of the law so that no law that fails to meet these standards can be considered valid. Hence, to count as genuine, the rules have to meet the eight minimal requirements cumulatively; namely, they should be:
6 ‘The term “procedural” is, however, broadly appropriate as indicating that we are concerned, not with the substantive aims of legal rules, but with the ways in which a system of rules for governing human conduct must be constructed and administered if it is to be effcacious and at the same time remain what it purports to be.’ Lon L. Fuller, The Morality of Law (Revised edn, Yale University Press 1969) 96–97. 7 Thomas Hobbes, Leviathan or the Matter, Form and Power of a Commonwealth, Ecclesiastical and Civil,
Henry Morley (intro), LL.D., Professor of English Literature at University College, London (2nd edn,
George Routledge and Sons 1886) XIV, 66. 8 David Pataraia, Traditional Theoretical Approaches in International Relations (Jus Press 2017) 55. 9 Two Treatises of Government by John Locke (A new edition corrected. published 1821 (MDCCCXXI) by
Printed for Whitmore and Fenn and C. Brown) Book II, 191, 305.
1 General – refecting the ‘economic prudence’ to spread the talents of the lawmakers by putting them to work on drafting general rules and not overloading them case by case. 2 Promulgated – as the law is established for the application and it is reasonable ‘at least to make available to the affected party the rules he is expected to observe’. 3 Prospective – as the law shall be applicable only to future behaviour, not the past, since it is reasonable to assume that a person must, frst of all, know the rule to obey it. 4 At least minimally clear and intelligible – as the ‘desideratum of clarity represents one of the most essential ingredients of legality’ since it is reasonable that a person must understand the rule to follow it. 5 Free of contradictions – since it is reasonable that a person must realise which rule to obey. 6 Possible to obey – as ‘a law commanding the impossible seems such an absurdity that one is tempted to suppose no sane lawmaker, not even the most evil dictator, would have any reason to enact such a law.’ 7 Relatively constant – as the law shall not be subjected to being altered and hanged continuously on an everyday basis, since instability is a challenge which greatly affects obedience to laws. 8 Administered in a way that there must be ‘congruence between offcial action and declared rule’. ‘This congruence may be destroyed or impaired in a great variety of ways: mistaken interpretation, inaccessibility of the law, lack of insight into what is required to maintain the integrity of a legal system, bribery, prejudice, indifference, stupidity, and the drive toward personal power.’10
Two mainstream lines of argumentation
Thus, among the naturalists discussed earlier, two mainstream lines of argumentation/ thinking on the law of nature can be observed:
• The frst line of argumentation views the law of nature in terms of its substantial meaning – as in the case of the classical authors mentioned earlier. Such considerations are mostly focused on the preservation of an individual human or a group of humans or the protection of human dignity or the common good. Accordingly, the morality of law is primarily related to the protection of human life and dignity or the common good. The logical assumptions of the naturalists are sometimes applied to the so-called ‘state of nature’, which is a condition in which society exists ‘without a fear for the common power’ (e.g. has not yet constituted a state).11
10 Fuller (n 6) 49–81. 11 For example, ‘Thomas Hobbes does not argue that the mankind has experienced as a common developmental stage a historically universal existence in the state of nature described by him, however, he is certain that some societies existed in the same state of nature in his age. To give more weight to his arguments, he brings the example of the savage tribes in America, whose manner of existence, in his opinion, was brutish. In addition, he argues that the state of the human existence in the state of
• The second line of argumentation views the law of nature in terms of its ‘procedural’ meaning – as in order to become a law, the norms should cumulate/possess the valid (procedural) characteristics of law.12
The law as the ordinance of reason
Thomas Aquinas (1225–1274) was convinced that the law ‘is nothing else than an ordinance of reason for the common good, made by him who has care of the community, and promulgated.’13
Many naturalists share the conclusion that the law is an ordinance of reason, the fundamental pattern of which is composed by the law of nature.14 Accordingly, for naturalists all positive legal norms shall be practically reasonable and be in synchrony with the law of nature. Otherwise, they are not law. At the same time, it is practically reasonable in itself to establish a ‘rational’ standard constraining human behaviour in relation to other human beings and vice versa.
In general, the comprehension of the law as the ordinance of reason opens the door for morality by recognising the maxim that what is reasonable (for all humans) is, at the same time, synchronised with morality.
In substantial terms, the morality of law was often disclosed by the so-called classical naturalists in the protection of human life and dignity or the common good. Hence, in such a version, the natural law legal theory overlapped with the so-named natural law moral theory. Sometimes, the classical naturalists also referred to the concept of ‘just law’ deduced from natural law and proclaimed the well-known formula ‘an unjust law is no law at all’.15
nature can easily be observed during a civil war; by observing the human existence without a fear for the common power and the degeneration of the lives of people accustomed to live under the peaceful government.’ Pataraia (n 8) 52. 12 However, a dilemma arises as to why the society should maintain the order established even by the ideally arranged law-making process, when the material norms of law do not comply with the substantial natural law. Therefore, the cogitation on the idea of law developing some procedural characteristics of the valid law – for instance, the ‘principles of legality’ presented in this chapter, accordingly, such conditions as the promulgation and clarity of law, the possibility of obeying the law, and so forth – from the viewpoint of the substantive naturalists, might be signifcant but certainly are not suff cient prerequisites to establish the legal order which is harmonised with the natural law. 13 J. Budziszewski, Commentary on Thomas Aquinas’s Treatise on Law (Cambridge University Press 2014) 53. 14 Some of them demonstrated a more complex interplay of the appearances of law; for example, by distinguishing, in addition to the law of nature and positive law, divine law. ‘Aquinas identif ed four different kinds of law: the eternal law, the natural law, the divine law, and human (positive) law. . . .
According to Aquinas, (genuine or just) positive law is derived from natural law.’ Brian Bix, ‘Natural
Law Theory’ in Dennis Patterson (ed), A Companion to Philosophy of Law and Legal Theory (2nd edn,
Blackwell Publishing Ltd 2010) 213. 15 ‘A more reasonable interpretation of statements like “an unjust law is no law at all” is that unjust laws are not laws “in the fullest sense.” . . . This only indicates that we do not think that the title in this case carries with it all the implications it usually does. Similarly, to say that an unjust law is “not really law”
The morality of law was prominently expressed by John Finnis (born 1940), a famous contemporary naturalist: ‘[N]o theorist can give a theoretical description and analysis of social facts without also participating in the work of evaluation, of understanding what is really good for human persons, and what is really required by practical reasonableness.’16
As it is mentioned earlier, natural law itself is considered by naturalists as the domain of reason. Hence, introspection into the essence of the law of nature is the process of rational thinking (‘the best human reasoning’) and the making of a logical chain of conclusions (in the case of many classical naturalists, the drawing up of a logical chain of deductions from the assumption acknowledged as a fundamental rule of reason). Besides, in order to identify a material norm as a rule of natural law, writers often pay attention as to whether the precept is combined with the value-laden adjectives like ‘inherent’, ‘inalienable’, ‘essential’, ‘fundamental’, or ‘natural’.
The feld in which authors commonly detect substantial natural norms is human rights. As James Leslie Brierly (1881–1955), an outstanding international lawyer, noted, by referring to certain fundamental, inherent, or natural rights, the ‘[w]riters differ in enumerating what these rights are, but generally fve rights are claimed, namely self-preservation, independence, equality, respect, and intercourse.’17
Finally, it is noteworthy that the perpetuity of the law of nature was traditionally considered a crucial characteristic. However, over time, some authors theorised on the possibility of developing the law/laws of nature together with the corresponding evolution of the source, which the authors regarded as the originator of such law/laws. Nevertheless, in classical and pure terms, natural law must be discovered as an eternal rule, and only such material or ‘procedural’ rule (or rules) of reason which may be comprehended as being perpetual shall be referred to as the rule (or rules) of the law of nature.
Legal positivism school of thought
The legal positivism school of thought saw its rise to prominence sometime later. Since the early nineteenth century, natural law assumptions and deductions have been strongly challenged by the new approach, primarily stemming from the writings of such prominent thinkers like Jeremy Bentham (1748–1832) and John Austin (1790–1859). According to Jeremy Bentham:
Right . . . is the child of law: from real laws come real rights; but from imaginary laws, from laws of nature, fancied and invented by poets, rhetoricians, and dealers in moral and intellectual poisons, come imaginary rights, a bastard brood of monsters.18
may only be to point out that it does not carry the same moral force or offer the same reasons for action as laws consistent with “higher law.”’ ibid 214. 16 John Finnis, Natural Law and Natural Rights (2nd edn, Oxford University Press 2011) 3. 17 Brierly (n 5) 49. 18 The Oxford Dictionary of Quotations, Elizabeth Knowles (ed) (5th edn, Oxford University Press 2001) 2.91.
‘The term “positivism” derives from the Latin positum, which refers to the law as it is laid down or posited. Broadly speaking, the core of legal positivism is the view that the validity of any law can be traced to an objectively verif able source.’19
For the classical positivist thinkers, a rule may be considered a law when it comes from a recognised authority and can be enforced by the very authority that issued it (for example, according to Austin, laws are the commands of the sovereigns backed up with the threat of a sanction), such as a king, a parliament, or any ruler who has legislative power within a particular def ned territory.
Positivists generally claim that the law is ‘a matter of social facts’ (which can be explained ‘that the laws of a society exist and have meaning if and only if human beings create them and give them meaning’) and does not necessarily have a moral character.20
Consequently, the positivist thinkers distinguish law from morality. They argue that as long as it was passed validly, even an ‘immoral’ law is a law, albeit a ‘bad’ law. This premise does not mean that the positivist writers are not critical of the merits of the laws. Jeremy Bentham, for instance, was a positivist who criticised ‘bad’ laws. However, his criticism was not about the validity of such laws.21
Modern legal positivism
As was articulated by Herbert Lionel Adolphus Hart (1907–1992), a remarkable positivist writer of the twentieth century,‘we shall take Legal Positivism to mean 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.’22
He criticised the standpoint of naturalists and ‘the claim that laws of proper conduct may be discovered by human reason’ and argued that the norms of law which ‘require men to behave in certain ways’ are prescriptive in nature, in contrast to the laws which
19 Raymond Wacks, Philosophy of Law: A Very Short Introduction (2nd edn, Oxford University Press 2014) 25. 20 ‘The frst is the social fact thesis: what constitutes the law in a certain society is ultimately a matter of social facts – facts about the mental states and behavior of certain individuals. Put more simply, the social fact thesis states that the laws of a society exist and have meaning if and only if human beings create them and give them meaning. The second thesis . . . is the separability thesis: there is no necessary connection between law and morality. . . . For many years, the social fact and separability theses jointly defned the position known as legal positivism, but in the late twentieth century, positivists began to abandon separability, leaving the social fact thesis as their sole defning thesis.’ Jeffrey Brand, Philosophy of Law Introducing Jurisprudence (Bloomsbury 2013) 5. 21 ‘The arch-positivist of the modern era, Jeremy Bentham, was a dedicated social reformer who forcefully attacked the laws of England throughout his life. In doing so, however, he attacked them as bad laws, and did not claim that they were non-laws because they were bad.’ Stephen Guest, Adam Gearey, James
Penner, and Wayne Morrison, Jurisprudence and Legal Theory (University of London Press 2004) 64. 22 HLA Hart, The Concept of Law (2nd edn, Clarendon Press 1994) 185–186.
‘formulate the course or regularities of nature’ and which can be detected by observation and reasoning.23
As a positivist author, Hart paid particular attention to the structure of (positive) law and the legal rules. He enumerated the three so-called ‘defects’ of the regulations in the ‘simple form of social life’; namely, uncertainty, static character, and ineff ciency.‘The remedy for each of these three main defects in this simplest form of social structure consists in supplementing the primary rules of obligation with secondary rules’.24 The primary rules, he said, govern conduct; the secondary rules, in turn, prescribe the procedural methods by which the primary rules ‘may be conclusively ascertained, introduced, eliminated, varied, and the fact of their violation conclusively determined.’25 Such secondary rules consist of the rules of recognition, the rules of change and the rules of adjudication.26
With the identifcation of these types of rules, Hart aimed to refect the comprehensive system of law and to elaborate a more accurate approach to the validity of law. In the end, he found the source of the validity of the primary rules in the rules of recognition.27
The different perspectives on the question of the validity of the naturalist and positivist approaches
Thus, one of the critical issues which gives impetus to a confrontation between these two schools of thought concerns the legal validity problem: namely,
23 ‘[P]rescriptive laws may be broken and yet remain laws, because that merely means that human beings do not do what they are told to do; but it is meaningless to say of the laws of nature, discovered by science, either that they can or cannot be broken. If the stars behave in ways contrary to the scientif c laws which purport to describe their regular movements, these are not broken but they lose their title to be called “laws” and must be reformulated.’ ibid 187. 24 ibid 94. 25 ibid. 26 The rule of recognition ‘is accepted and used for the identifcation of primary rules of obligation.’ ‘In the day-to-day life of a legal system its rule of recognition is very seldom expressly formulated as a rule; though occasionally, courts in England may announce in general terms the relative place of one criterion of law in relation to another, as when they assert the supremacy of Acts of Parliament over other sources or suggested sources of law.’ The rule of change ‘empowers an individual or body of persons to introduce new primary rules for the conduct of the life of the group, or of some class within it, and to eliminate old rules.’ Finally, the rules of adjudication are provided ‘to make authoritative determinations of the question whether, on a particular occasion, a primary rule has been broken. . . . Besides identifying the individuals who are to adjudicate, such rules will also defne the procedure to be followed.’ ibid 95–97, 100–101. The secondary rules are identifed in the Constitutions or other legislation (for example, the rules of adjudication, in addition, are refected in the so-called processual codes) of certain countries. 27 ‘There are therefore two minimum conditions necessary and suffcient for the existence of a legal system. On the one hand, those rules of behaviour 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 off cial behaviour by its off cials.’ ibid 116.
• Is it just a matter of the source of the norm (‘an objectively verifable source’), as is assumed by the positivist thinkers? or • Is it about the content of the norm (to be in synchrony with the substantive natural law) or the valid law-making process (to be in synchrony with the procedural natural law), as is assumed by the representatives of the natural law school of thought?28
Other theories and approaches
In the philosophy of law, in parallel with the mainstream schools of thought, other more or less infuential theories of law were developed, such as legal realism, 29 critical legal theory, 30 and so forth.
Normative theory
One of the most outstanding other approaches is the so-called ‘normative theory’ developed by Hans Kelsen (1881–1973), the famous Austrian jurist and philosopher, who elaborated the ‘pure theory of law’, which shares some essential aspects with legal positivism (for example, with an emphasis on positive forms of law, the separability thesis which assumes that there is no necessary connection between law and morality). However, at the same time, the pure theory of law is a unique approach since it is based on the ethos of a pure normative model, which founds the validity of every norm of a legal system on the higher norm and ultimately arrives at the realm of presupposition (the basic norm, which ‘is a hypothesis and a wholly formal construct’).31
Kelsen recognised that
[a]ll laws are created by human actions, but human actions are facts and they belong to the realm of the ‘is,’ whereas laws are norms and belong to the realm of the ‘ought.’ It is another of Kelsen’s unquestioned beliefs that there is an unbridgeable gap between the ‘is’ and the ‘ought’; that norms cannot derive their existence from facts.32
28 It must be made clear that the naturalists also did not exclude the power of the rulers to make positive laws; however, the source of validity for positive laws were found in natural law. 29 ‘There are two “schools” of realism: the American and the Scandinavian. While they share certain similarities, they also differ fundamentally in their approach and methodology. . . . In particular, although the American movement was largely pragmatist and behaviourist, emphasizing “law in action” (as opposed to legal conceptualism), the Scandinavians were preoccupied with mounting a philosophical attack on the metaphysical foundations of law.’ Wacks (n 19) 108. 30 ‘The most general statement of critical legal theory was the slogan, “Law is politics”.’ The Blackwell
Guide to the Philosophy of Law and Legal Theory, Martin P. Golding and William A. Edmundson (eds) (Blackwell Publishing 2005) 80. 31 Wacks (n 19) 41. 32 Joseph Raz,‘Kelsen’s Theory of the Basic Norm’ (1974) 19(1) The American Journal of Jurisprudence 96.
Therefore, he concluded that ‘the objective validity of a norm . . . does not follow from the factual act, that is to say, from an is, but again from a norm authorizing this act, that is to say, from an ought.’33
Hence, according to the pure theory of law, norms possess a validity when they are derived from higher norms existing at hierarchically higher levels. These latter norms, again, obtain their validity in a similar way, and so forth until touching the basic norm (in German – Grundnorm), whose validity can no longer be obtained from the normative delegation but has to be presupposed. In other words, ‘[s]ince the actual, legal, chain of validity comes to an end, we inevitably reach a point where the “ought” has to be presupposed, and this is the presupposition of the basic norm.’34
On the other hand, there is a need to fnd the right connection between the national legal system of a given state and international law, since Kelsen was convinced that ‘there can be just one normative system and just one basic norm’35 of a given country. (‘No one can serve two masters,’ pointed out Kelsen.)
However, there can be ‘two monistic constructions’ – (1) ‘international law which from the viewpoint of the primacy of national law is regarded as merely a part of national law’ and (2) ‘international law which from the viewpoint of the primacy of the international legal order is regarded as a legal order superior to all national legal orders delegating these legal orders.’
For the frst, starting from the validity of a national legal order, the reason for the validity of international law [as well as any particular national legal order] is the presupposed basic norm, according to which the establishment of the historically frst constitution of the state is a law-creating fact. For the second, starting from international law, the reason for its validity is the presupposed basic norm, according to which the custom of the states is a law-creating fact.36
At the same time, in Kelsen’s concept, the ‘historically frst constitution of the state’ has a complex meaning. He wrote that
the basic norm . . . refers directly to a specifc constitution, actually established by custom or statutory creation, by and large effective, and indirectly to the coercive order created according to this constitution and by and large effective; the basic norm thereby furnishes the reason for the validity of this constitution and of the coercive order created in accordance with it.37
33 Hans Kelsen, Pure Theory of Law, Max Knight (tr) (University of California Press 1967) 9. 34 ‘At some stage, in every legal system, we get to an authorizing norm that has not been authorized by any other legal norm, and thus it has to be presupposed to be legally valid. The normative content of this presupposition is what Kelsen has called the basic norm.’ ‘The Pure Theory of Law’ (2016) Stanford Encyclopedia of Philosophy < https://plato.stanford.edu/entries/lawphil-theory/ > accessed 16 March 2021. 35 Raz (n 32) 110. 36 Kelsen (n 33) 339. 37 ibid 201.
In sum, Kelsen preferred a monistic picture for every national legal order in which each state had its own unif ed legal order based on the primacy of international law. Moreover, in addition, he claimed that ultimately, the basic norm’s ‘validity depends on eff cacy’.38 As it was summarised by Kelsen, the ‘[b]eginning and end of the validity of a national legal order are determined by the legal principle of effectiveness’, which is ‘a norm of positive international law’.39
Law as integrity
The other authoritative theory originated in the common law world and was developed by a renowned American jurist and philosopher, Ronald Dworkin (1931–2013), who promoted the meaning of ‘law as integrity’.40 He elaborated the theory based on the analysis of the cases and the existing discretion of the judges in the decision-making process (mostly in the common law family countries).41
[P]ositivism generally claims that law consists of rules determined by social facts. Where . . . rules run out [Hard cases], the problem can be resolved only by the exercise of a subjective, and hence potentially arbitrary, discretion. . . . If, however, there is more to law than rules, as Dworkin claims, then an answer may be found in the law itself. Hard cases . . . may, in other words, be decided by reference to the legal materials; there is no need to reach outside the law and so to allow subjective judgements to enter.
Hence,
Dworkin’s account of the judicial function requires the judge to treat the law as if it were a seamless web. There is no law beyond the law. Nor, contrary to the positivist thesis, are there any gaps in the law. Law and morals are inextricably intertwined.42
38 Wacks (n 19) 41. ‘If the validity of a legal order requires the effectiveness of its basic norm, it follows that when that basic norm of the system no longer attracts general support, there is no law. This is what happens after a successful revolution. The existing basic norm no longer exists, and, Kelsen says, once the new laws of the revolutionary government are effectively enforced, lawyers may presuppose a new basic norm. This is because the basic norm is not the constitution, but the presumption that the altered state of affairs ought to be accepted in fact.’ ibid 43. 39 Kelsen (n 33) 338, 336. 40 Ronald Dworkin, Law’s Empire (The Belknap Press of Harvard University Press 1986) 94. 41 ‘Law as integrity asks a judge deciding a common-law case . . . to think of himself as an author in the chain of common law. He knows that other judges have decided cases that, although not exactly like his case, deal with related problems; he must think of their decisions as part of a long story he must interpret and then continue, according to his own judgment of how to make the developing story as good as it can be.’ ibid 238–239. 42 Wacks (n 19) 51, 55.
To demonstrate the ‘law as integrity’, Dworkin distinguished the rules, principles (‘a standard that is to be observed, not because it will advance or secure an economic, political, or social situation deemed desirable, but because it is a requirement of justice or fairness or some other dimension of morality’), and policies (‘that kind of standard that sets out a goal to be reached, generally an improvement in some economic, political, or social feature of the community (though some goals are negative, in that they stipulate that some present feature is to be protected from adverse change)’),43 which are in the hands of the judges to interpret the law and to apply the appropriate legal sources of law.44
As Dworkin argued, ‘[l]egal systems characteristically generate controversial or hard cases such as these in which a judge may need to consider whether to look beyond the strict letter of what the law is to determine what it ought to be.’ Hence, it is critical for the law to be properly applied to implement ‘an interpretive process under which individual rights are paramount.’45
To answer the question ‘Do judges have to have discretion?’ Dworkin ‘revisited’ the naturalist approach and concluded that
judges should decide hard cases by interpreting the political structure of their community in the following, perhaps special way: by trying to fnd the best justif cation they can fnd, in principles of political morality, for the structure as a whole, from the most profound constitutional rules and arrangements to the details of, for example, the private law of tort or contract.46
43 Ronald Dworkin, Taking Rights Seriously (Harvard University Press 1978) 22. According to Dworkin, some court decisions reveal that, in addition to rules, the law includes principles. For example, he wrote: ‘In 1889 a New York court, in the famous case of Riggs v. Palmer, had to decide whether an heir named in the will of his grandfather could inherit under that will, even though he had murdered his grandfather to do so. The court began its reasoning with this admission: “It is quite true that statutes regulating the making, proof and effect of wills, and the devolution of property, if literally construed, and if their force and effect can in no way and under no circumstances be controlled or modif ed, give this property to the murderer.” But the court continued to note that “all laws as well as all contracts may be controlled in their operation and effect by general, fundamental maxims of the common law. No one shall be permitted to proft by his own fraud, or to take advantage of his own wrong, or to found any claim upon his own iniquity, or to acquire property by his own crime.” The murderer did not receive his inheritance.’ ibid 23. 44 ‘Dworkin claims that, while rules “are applicable in an all-or-nothing fashion”, principles and policies have
“the dimension of weight or importance”. In other words, if a rule applies, and it is a valid rule, a case must be decided in a way dictated by the rule. A principle, on the other hand, provides a reason for deciding the case in a particular way, but it is not a conclusive reason: it will have to be weighed against other principles in the system. Principles differ from policies in that the former is “a standard to be observed, not because it will advance or secure an economic, political, or social situation, but because it is a requirement of justice or fairness or some other dimension of morality”. A “policy”, however, is “that kind of standard that sets out a goal to be reached, generally an improvement in some economic, political, or social feature of the community”. Principles describe rights; policies describe goals.’ Wacks (n 19) 55. 45 ibid 52, 50. 46 Ronald Dworkin, ‘“Natural” Law Revisited’ (1982) 34(2) University of Florida Law Review 165–188.
The complex interaction between the legal approaches
In numerous countries, the positive law approach, which posits that the law comes from an objectively verifable source, represents the main pattern. This approach is sometimes nourished by the viewpoint from the natural law schools of thought (and in some instances, other theories as well; for example, the normative theory inf uenced the development of the strong normative hierarchy system in many countries); however, in general, a particular rule of natural law or at least recognition of the law of nature as a source of the law shall be made through the lenses of positive law.
The same applies to international law. The most frequently used sources of international law – treaty and custom – are the expression of positive law. The third source – the general principles of law, which as a source of international law was affrmed in the twentieth century – also should primarily be considered as a form of positive law. However, at the same time, sometimes it may be regarded as an acknowledged open window into the world of natural law. The chapter ahead in this book contains a more detailed examination of this matter.
An example of the implementation of the naturalist approach in international law is the Nuremberg trials of Nazi war criminals, which used the principle that certain acts constitute ‘crimes against humanity’, even if, at the moment they are committed, they do not fall under the specif c regulations of the positive law. Nevertheless, this provision was applied to particular persons only after its recognition in the Nuremberg Charter (positive law).47
The ref ection of the natural law legal theory can be found in many international documents on human rights (for example, the Universal Declaration of Human Rights, the European Convention on Human Rights, and so forth), in which, however, the ‘[n]atural law is conceived of not as a “higher law” in the constitutional sense of invalidating ordinary law but as a benchmark against which to measure positive law.’48
Nonetheless, in certain states, other legal approaches prevail. For instance, in the Islamic law tradition (religious law) countries, albeit with some modifcations stipulated by the modern era (which are implemented in various proportions in these countries), the concept of divine law remains а foundational pattern, which itself is expressed in positive forms, but the rulers have limited power in the law-making process.49
47 The Charter of the International Military Tribunal, commonly known as the Nuremberg Charter, which was annexed to and formed an integral part of the London Agreement. The jurisdiction of the Tribunal was defned under Article 6 of the Charter, and Paragraph (c) of this Article recognised the ‘Crimes against humanity’. 48 Wacks (n 19) 14. 49 ‘Two terms are used to refer to law in Islam: Shariah and fqh. Shariah refers to God’s divine law as contained in the Quran and the sayings and doings of Muhammad (hadith). Fiqh refers to the scholarly efforts of jurists (fuqaha) to elaborate the details of shariah through investigation and debate. Muslims understand shariah to be an unchanging revelation, while fqh, as a human endeavor, is open to debate, reinterpretation, and change.’ The Oxford Dictionary of Islam, John L. Esposito (ed in chief) (Oxford
University Press 2003) 148.
