Lecture Script

Concepts of Law
Core questions:
- The letter of law vs the spirit of law (the problem of the ratio of form
and content, real (the law) and ideal (law));
- law vs the law;
- What is the source of law? Where does the law come from? Who is its
author?
- Why must people comply with legal norms?
- What is the content of law? Criteria for its evaluation. Law binding
criteria (the criteria of legal validity). What makes a law legally binding? What
should we count (consider) as a law?
- What determines the effectiveness of law?
- What is law? What is the purpose of the existence of law?
- Real vs ideal law (theory of law vs philosophy of law);
- Universalism vs Particularism;
- objective vs subjective justice;
- Is there an objective truth (justice) in law?
- Is there a single, universal morality?
- morality vs law;
- theory vs practice;
- positivists vs naturalists.

The Normative Theory of Law

The main representatives of the concept: Jeremy Bentham, John Austin,

Hans Kelsen.

J. Austin: «Law is the command of the sovereign backed by the threat of

punishment».

The main work is «Pure Theory of Law» by H. Kelsen (in German:

Reine Rechtslehre). The first edition of the work – 1934, the second
expanded – 1960.

Key points:
- the notion of a «basic norm» (in German Grundnorm) – is general
order;
- on the one hand, law – is a static, formal system (with the highest norm
on the top – Grundnorm) and, on the other, it is dynamic system (Grundnorm
provides competence and legitimacy to authorities that adopt other legal norms,
so, the creation of law occurs by transferring authority (empowerments) to
create other legal norms. The highest norm (Grundnorm) is the basis for the
adoption of a lower legal norm);
- the division of social reality into the spheres of «Sein» (in German –
being – the sphere of morality) and «Sollen» (duty – law). Law always remains
only in the field of «Sollen»;
- the concept of law must be fixed in the legal norm (has a general,
abstract nature);
- law is a formal-logical, coherent system (material), which has a
static nature and consists of logical connections, from which the lower
norm arises from the content of the higher norm (hierarchical system –
«pyramid of legal norms»);

- features of the legal system: completeness, consistency, absence of gaps

and collisions in law.
 Legal Positivism

Representatives: classical positivism – Jeremy Bentham, John Austin;

more modern approaches – Herbert Lionel Adolphus Hart, Joseph Raz and
others.

Key points:
- «Separation thesis»: there is no necessary, obligatory connection
between law and morality;
- source of law – a man represented by the state, public authorities;
- the source of the obligation of law – the law, not morality (in German
Gesetzespositivismus – «legal (statutory) positivism»);
- logical analysis of law (analytical jurisprudence, syllogic concept:
classical and categorical syllogisms), clarification of the content of law from the
meaning of words, notions, terms used in law, an analysis of logical
connections in the text of the law;
- at the beginning of the 20th century – the «jurisprudence of concepts» (in
German Begriffsjurisprudenz);
- «soft» (inclusive) positivism – H. Hart vs «hard» (exclusive) positivism
– J. Raz (law obliges from its authority). Hart admits the possibility of a
connection between law and morality, if it is necessary in a particular society. J.
Raz categorically excludes the connection between law and morality.

H. L. A. Hart (Herbert Lionel Adolphus Hart)

Key work – The Concept of Law (1961; third edition – 2012).

Key points:
- law – is a set of primary and secondary legal rules;
- «social thesis» – the idea that the existence and content of law depend
only on social facts, – the rule of recognition – the test of the origin of law, the
criterion of the obligation of law; law must meet public expectations and be
recognized by society;
- the problem of «the core and the penumbra» case (the problem of
interpretation (purposive interpretation), a concept of «open-textured»).
https://cyber.harvard.edu/bridge/LegalProcess/fuller1.txt.htm
https://en.wikipedia.org/wiki/Hart%E2%80%93Fuller_debate

Natural Concepts of Law (iusnaturalism) (Natural Law Theories)

 Representatives: Aristotle, I. Kant (Immanuel Kant), T. Hobbes (Thomas
Hobbes), J. Locke (John Locke), J. -J. Rousseau (in French: Jean-Jacques
Rousseau), L. Fuller (Lon Fuller) and others.
Key points:
- all people have inherent rights, conferred not by act of legislation but
by «God, nature, or reason» (natural rights: right to life, freedom, property,
etc.);
- a man does not create law, it exists objectively in nature;
- the source of law – eternal external law – nature, God, the cosmos, the a
priori idea, human freedom, today – the human reason (reasonable law –
«rational law»). The principle of reasonableness of law;
- the moral thesis (there must be a necessary connection between law
and morality); morality as the source of law’s binding force;
- the content of the law matters;
- assessment of the content of law in terms of its compliance with
morality, an appeal to the main values and principles of law – justice, equality,
freedom, humanism, human dignity, which are core ideas of the essence and
existence of law, and therefore should be embodied in the law as the main
external form of written consolidation, objectification and existence of law;
- the main purpose of law – to ensure and protect human rights and
freedoms.

Gustav Radbruch

Important works:
- FÜNF MINUTEN RECHTSPHILOSOPHIE («Five Minutes of Legal
Philosophy», 1945). This work significantly influenced the formation of the
jurisprudence of values (in German Wertungsjurisprudenz) and was popular
especially after World War II as a reaction to legal positivism;
- GESETZLICHES UNRECHT UND ÜBERGESETZLICHES RECHT,
in English Statutory Lawlessness and Supra-Statutory Law, 1946.

Key points:
- Radbruch’s formula (law vs the law, spirit of law vs the letter of the
law), in German Unerträglichkeit These – the thesis of intolerance; intolerable,
extreme injustice. Extremely unjust law is not and cannot be recognized as
a law. In this case, it is considered as «unlawful», «illegal»;
- the idea of law – is justice;
- legal values: justice (equality), legal certainty (security), expediency.
[The problem of the controversy between the spirit and the letter of the
law, in Germany, has been brought back to public attention due to the trials of
former East German soldiers who guarded the Berlin Wall – the so-called
necessity of following orders.]
 Lon Luvois Fuller

Main works:
- Law in Quest of Itself, 1940;
- Basic Contract Law, 1947 (second edition – 1964);
- Problems of Jurisprudence, 1949;
- The Morality of Law, 1964 (second edition – 1969);
- Legal Fictions, 1967;
- Anatomy of Law, 1968.

Hart and Fuller Debate on Law and Morality – «Nazi informer case» in
Harvard Law Review (Vol. 71), 1958 https://en.wikipedia.org/wiki/Hart
%E2%80%93Fuller_debate#:~:%20text%20=%20The%%2020Hart%%20E2%
%2080%%2093Fuller%%2020debate%%2020is,%20morality%%2020and%
%2020law%%2020were%%2020separate.

Key points:
- «internal morality of law» (morality of aspiration) – certain moral
standards that imposes on individuals a presumptive obligation of obedience.
These moral standards he calls «principles of legality». They are built into the
very concept of law, so that nothing counts as genuine law that fails to meet
these standards;
- there are 8 requirements of legality (eight principles of legality) –
conditions of observance (execution) and effectiveness of law; preservation
(maintenance) of autonomous values of law – a fairy tale about King Rex.
Thus, according to Fuller, all legal rules must meet eight minimal
conditions in order to count as laws. The rules must be (1) sufficiently
general, (2) publicly promulgated, (3) prospective (i.e., applicable only to future
behavior, not past, – in Latin lex retro non agit), (4) at least minimally clear and
intelligible (разборчивы), (5) free of contradictions, (6) relatively constant, so
that they don’t continuously change from day to day, (7) possible to obey, and
(8) administered in a way that does not wildly diverge from their obvious or
apparent meaning (виконуються таким чином, що не дико розходиться з їх
очевидним або передбачуваним значенням (cуперечності між
застосуванням законів і вимогами самих законів)).
Fuller contends that the purpose of law is to subject «human conduct to
the governance of rules» (the concept of the Rule of Law). If any of the eight
principles is flagrantly lacking in a system of governance, the system will not be
a legal one.

Sociological Concepts of Law

 Representatives: M. Weber (Max Weber), E. Ehrlich (in German: Eugen
Ehrlich), R. Pound (Nathan Roscoe Pound), B. Kardozo (Benjamin Nathan
Kardozo) and others.

Key points:
- law in books vs law in action;
- "dead-letter" vs "living law";
- "hypothetical" vs "real, actual law" (law in action);
- source of law – social relations, public life, experience, practice;

Legal Realism as a kind of sociological concept of law (positivism plus

psychological concept)

Representatives: O. W Holmes (Oliver Wendell Holmes), J. Gray (John

Chipman Gray), A. Ross (Alf Ross), K. Llevellyn (Karl Llevellyn) and others.
It was originated in the United States, is actively developing today in the
Scandinavian countries (Sweden, Finland, Denmark).

Key points:
- law – is a social fact (actually existing in practice), social and mental
behavior of a person that is binding;
- there is no dualism of morality and law;
- legal texts – secondary law;
- forecast theory, prediction – hypothetical and real possibility of
fulfilling the legal norms in the future (projection for the future);
- precondition for the action of law – is that legal norm must be actually
implemented (in practice);
- people must recognize such norms.
- theory of "bad man";
- pragmatism of law (instrumental pragmatism);
- adequate methodology for studying human behavior – behavioral
sociology;
- the criterion of the obligation of law – the action (effect) of law + the
effectiveness of law;
- legal norm is binding if it is applied in practice. Positive law is only
potential law (American realism);
- law is what happens in the courts, where it is created;
- positive law and intuitive law (legal psychology, mental experience of
person).

Modern Varieties of the Sociological Concept of Law

- E. Ehrlich – the concept of "free law" ("live law").

 Jurgen Habermas – law – as a discourse (communicative rationality) –
(discourse theory, communicative rationality or communicative reason).
- theoretical discourse, and
- practical discourse (normative, interpretive, legal).

Key points:
- source of law – communication, interpersonal (intersubjective)
communication, interaction between people;
- "rules of the game" (rules of communication);
- communication leads to mutual understanding;

Modern legal understanding. Integrative concepts

(The Integrative Theory of Law)

An attempt to combine the positive features of several classical concepts.

Ronald Dworkin’s integrative philosophy of law – law as integrity.

Works by R. Dworkin:

- Taking Rights Seriously. Cambridge, Massachusetts: Harvard

University Press, 1977.
- A Matter of Principle. Cambridge, Massachusetts: Harvard University
Press, 1985.
- Law’s Empire. Cambridge, Massachusetts: Harvard University Press,
1986.
- Philosophical Issues in Senile Dementia. Washington, DC: U.S.
Government Printing Office, 1987.
- A Bill of Rights for Britain. Ann Arbor, Michigan: University of
Michigan Press, 1990.
- Life’s Dominion: An Argument About Abortion, Euthanasia, and
Individual Freedom. New York: Alfred A. Knopf, 1993.
- Freedom’s Law: The Moral Reading of the American Constitution.
Cambridge, Massachusetts: Harvard University Press, 1996.
- Sovereign Virtue: The Theory and Practice of Equality. Cambridge,
Massachusetts: Harvard University Press, 2000.
- Justice in Robes. Cambridge, Massachusetts: Harvard University Press,
2006.
- Is Democracy Possible Here? Principles for a New Political Debate.
Princeton, New Jersey: Princeton University Press, 2006.
- The Supreme Court Phalanx: The Court’s New Right-Wing Bloc. New
York: New York Review Books, 2008.
 - Justice for Hedgehogs. Cambridge, Massachusetts: Harvard University
Press, 2011 (Justice for Hedgehogs). https://www.amazon.com/Justice-
Hedgehogs-Ronald-Dworkin/dp/0674072251
https://www.youtube.com/watch?v=5UFVkRGViMc
https://www.youtube.com/watch?v=2xIQWiq6wlU
- Religion Without God. Cambridge, Massachusetts: Harvard
University Press, 2013.

Key points:
- a combination of the advantages of naturalistic and positivist concepts
of law;
- critique of Hart and his theory of rules; Dworkin emphasizes that a law
is not limited to rules. The rules operate on the basis of "all – or nothing" (in
the sense that when two rules conflict, ‘one of them cannot be a valid rule’). At
the same time, there are norms that do not apply on this basis, and these norms
are the principles of law that indicate legal reasons, foundations of law and
act on the basis of their importance (dimension of weight of importance).
Hence, law consists not only of rules, but also of principles of law.
- the source of the principles of law is a "sense of appropriateness"
during their application by courts and public authorities.
- The principle must reflect the values of law.
- the idea of law – the values of law – the principles of law – the norm
of law;
- legal norms vs principles of law – Riggs versus Palmer case (murder of
the grandfather by his grandson for inheritance), 115 N.Y. 506 (1889). This case
actually confirmed that in hard cases, the judge refers to the principles of law,
and not only to the rules (legal norms). No man can take advantage of his own
wrong;
- axiological analysis of law (axiology – the science about values);
- law – is an interpretive fact;
- moral reasoning (validity) of law;
- hard cases – one right answer;
- Judge – the central figure of legal culture. Judge Hercules.

See also views on law of the modern German scientist – R. Alexy (Robert
Alexy). The work "The Argument from Injustice: a Reply to Legal Positivism",
2002 (in German Begriff und Geltung des Rechts). The monograph is devoted to
the relationship between law and morality, positive and natural (supra positive)
law, as well as the practical application of general principles of law in practice,
in particular by the higher courts of Germany. We have the book in the library,
or you can find it for free at https://www.twirpx.com/

The Concept of Economic Analysis of Law

 Law and Economics – economic analysis of law. – R. Posner (Richard
Posner).

Key point:
- maximization of wealth, a more radical approach. Modern concepts: 20
– beg. 21st century.

Current Trends of Legal Research

- Legal Intuition (Legal Mind),

- a new and relevant area of research in the world – Law and

Neuroscience, Cognitive Neuroscience Approach.