Public Law Thoughts:

Normativism and Functionalism,

Natural Law and Legal Positivism
GPAD 1100 Politics, Law and Society
Spring 2022, Nelson K. Lee
Lecture 2, 24th Jan., 2022
A. Public Law
1. Laws governing the relationship between
individuals (citizens, companies) and the state.

2. Major public laws: constitutional law,

administrative law, criminal law, etc.
B. Two Styles of Public Law Thought
1. Normativism

• Political philosophies/ normative political theories

• Conservative normativism: more likely to place trust in the
virtue and nobility of spirit of the rulers
• Liberal normativism: anxious to formalize the principles and
rules which are designed to preserve individual liberty
Con’t
2. Functionalism

• Sociological positivism/ social theories

• emphasizing facts and data gathering (what the social
reality is about?)
• Is there a necessity to enact law?
C. Albert V. Dicey’s Theory of Public Law:
Conservative (liberal) normativism

1. The “highest priest of

orthodox constitutional
theory”

2. Formulated the general

principles on which the
political association was
founded (Keeton, 1952, in
Loughlin, 1992, 141).

A. V. Dicey, 1835-1922
D. Dicey: Three Guiding Principles
Underpinning British Constitution
1. The legislative sovereignty of Parliament
(parliamentary supremacy):
• The King, the House of Lords, and the House of Commons
• Divine right of kings being replaced by the divine right of
Parliament
Con’t
2. The universal rule throughout the constitution
of law:

• Parliamentary sovereignty was believed to be

compatible with the rule of law because “the
commands of Parliament … can be uttered only
through the combined actions of the three
constituent parts.”
• “The absolute supremacy … of regular law”
• Equality before the law
Con’t
3. The role which constitutional
conventions play in the
ordering of the constitution
(Loughlin, 1992, 145-46):

• “The law of the constitution …

[is] not the source but the
consequence of the rights of
individuals.”
• Conventions are mainly rules
governing the exercise of the
King’s power and the privileges of
Parliament
E. Political Institutions
1. Parliament will set the
framework of general rules
for society, the executive will
govern within those rules and
an independent judiciary will
resolve disputes over the
meaning of those rules and
will to keep the executive
within the boundaries of law
(Loughlin, 1992, 145).
Con’t
2. No separation of the executive from the
Parliament, because dividing the two bodies
would:

• Place the government in a privileged position, and

undermine the principles of universality and equality
of law
• Require establishing a special court (e.g. administrative
court)
Con’t
3. How to reconcile the parliamentary
sovereignty and the rule of law?

• Dicey felt that Parliament was in no danger of abusing

its powers “because it was a combination of diverse
elements, linked together by an intricate system of
‘checks and balances’ … and also because Englishmen
possesses, to a markedly greater degree than other
peoples, a mysterious political instinct.” (Loughlin,
1992, 152)
Constitutional Independent
Monarchy: Judiciary
Divine rights of
Parliament – House
of Lords, House of Mysterious political
Commons instinct of Englishmen

Executive Branch of
Government
F. The Inadequacy of Dicey’s Theory
1. First World War, the end of the old order in Britain

2. Growth of the executive power: “Our English executive

is, as a general rule, becoming more and more the
representative of a party rather than the guide of the
country.” (Dicey, 1914, in Loughlin, 1992, 153)

3. Dicey’s harmonious guiding principles of the

constitution had been threatened by the rise of party
government and by the acquisition of power by
government.
Con’t
4. The structural pressures for the growth in
administration:
• The growth in the use of “framework legislation”, with
Parliament establishing a general framework for
controlling or regulating an area of activity and granting to
governmental agencies powers for the making of
subsidiary law and enforcement methods

5. “The complacent contrast between happy Englishmen

free from droit administratif and unhappy Frenchmen
subject to its terrors quietly faded out of the picture.”
(Robson, 1950, in Loughlin, 1992, 161-62)
G. The functionalist Response
1. There exists in (post-war) England a vast body of administrative
agencies and laws, “the problem is … to master its widespread
ramifications and reduce it to some kind of order and
coherence.” (Robson, 1951, in Loughlin, 1992, 165-66)

2. How to improve the functioning of the government?

3. The basic objective of the functionalist legal theorists was to

project an image of public law:
• Public law should ensure that the legal framework within which
government operated provided an effective and equitable structure
for the implementation of the public good
• Executive expertise is better able than Parliament to deal with
complex and technical matters of detail
• The need for a rational system of administrative adjudication,
because judicial procedures are costly
Think: Is the Hong Kong Government “big”?

• 1180+ Ordinances;

• CE, CS, FS, SJ, 13 Bureaux, 60+ government departments;

• 164,000 civil servants;

• 2013/14 Public Expenditure: HKD457.3 billion;

• Numerous statutory public bodies

Further thoughts … public law and
morality
H. Legal positivism
1. Positivist theorists describe law as it is in a given
time and place, by reference to formal criteria of
identification

2. There is no necessary connection between law

and morals

3. Legal knowledge rests on logical inference

grounded in empirical and observable facts
Con’t
5. Jeremy Bentham: Command Theory, law as:
• A command
• A sovereign
• A sanction

6. John Austin, law as:

• Technical instrument of government and
administration
• Laying down of rules as an act of government
• Rights and duties are created by rules
• There can be nothing inherently sacred about civil
or political liberties
I. Natural law
1. “The essence of natural law may be said to lie in the
constant assertion that there are objective moral principles
which depend upon the nature of the universe and which
can be discovered by reason.”

2. Natural law can be defined in terms of nature, ethical or

moral consideration, religious precepts, human reasons, etc

3. It is self evident – as given by God, or as derived from the

common features of human societies

4. Viewing nature and humanity teleologically – viewing them

as tending towards pre-determined ends
Con’t
5. Aristotle:
• Human beings have an inherent
potential for good
• There is a rationally observable higher
order, a cosmic reason which may be
appreciated by all peoples

6. Marcus Tullius Cicero:

• Natural law as “right reason in
agreement with nature.”
Con’t
7. St. Augustine:
• “An unjust law is no law”
• Anything just in positive law (lex
temporalis) would derive from
eternal law (lex aeterna)
• Tyrannical law made contrary to
reason is a perversion of law

8. Social contract theorists

(Hobbes, Locke, Rousseau, etc):
• The natural law of the formation of
human societies
J. Natural lawyers’ critique on legal
positivism
1. There cannot be a value free account of law

2. Law is inseparable from moral questions

3. “[T]he act of positing law … can and should be

guided by ‘moral’ principles and rules; that those
moral norms are a matter of objective
reasonableness, not of whim, convention, or
mere ‘decision’.” (Finnis in Wicks 2012, 30)
K. Moral position of legal positivist
1. Austin: Disobedience to evil laws is legitimate if it
would promote change for the good

2. Hart: “What surely is most needed in order to

make men clear-sighted in confronting the official
abuse of power, is that they should preserve the
sense that the certification of something as legally
valid is not conclusive of the question of
obedience … however great the aura of majesty or
authority which the official system may have, its
demands must in the end be submitted to a moral
scrutiny.” (Hart, The Concept of Law, 210)
Think: Related issues
• Should Hong Kong withdraw from The United Nations
Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment?

• Should Hong Kong exert export control on powdered

formula?

• Should European nations grant protection status to refugees

from Syria?