Legal Philosophy and the Foundations of Positive Law

Foundations of Positive Law and Legal Philosophy

Tema 3: Positive Law

Luigi Bagolini on Culture and Legal Activity

QUOTE 1: "One of the key functions, and perhaps precisely the main reason for the philosophy of law, is to clarify the relationship between Culture and all kinds of activity that can be qualified as legal." Consequently, "the task of the Philosophy of Law consists precisely in clarifying the ultimate goals and purposes upon which depends the technical and interpretive activity of the jurist." Luigi Bagolini

Henry Batiffol: General Theory vs. Philosophy of Law

QUOTE 2: Whereas the General Theory of Law "is limited to the study of those notions which are common to all branches of positive law," the Philosophy of Law should "show how the legal phenomenon implies the reality and the specific character of social problems and, through them, of human problems." Henry Batiffol

Hans Kelsen on Justice and Positive Law

QUOTE 3: "I think that the philosophy of law and the general theory of law also have their reason for being. The Philosophy of Law tries to answer the question of what rules law should adopt or establish: in other words, its specific purpose is the problem of justice. Since justice is a postulate of morality, the philosophy of law is a branch of moral philosophy or ethics. Its method is the same method as that of this discipline."

"By contrast, the general theory of law is aimed at law as it actually is, that is, positive law, both national and international. Its aim is to analyze the structure of positive law and fix the fundamental notions in the knowledge of that law." Hans Kelsen

Jean Louis Gardies and the Metajuridical Stance

QUOTE 4: "Since, therefore, no jurist has the chance to escape, in the long term, from a metajuridical stance, as the philosophy of law cannot cease to exist and manifest itself, at least from the moment that law itself arises and becomes present, actually there is no other reasonable attitude for the lawyer than to do that which he has no freedom to do as honestly as possible. This would then be the reason for the philosophy of law." Jean Louis Gardies

Hans Kelsen on Coercion and Moral Order

QUOTE 7: "The reaction of Law consists in a coercive measure imposed by order and socially organized, whereas the moral reaction against a conduct which is contrary to ethical norms is not established by the moral order, and, if available, is not socially organized." Hans Kelsen

H.L.A. Hart on Sanctions and Cooperation

QUOTE 8: "'Sanctions' are necessary, therefore, not as the normal motive for obedience, but as a guarantee that those who voluntarily obey will not be sacrificed to those who do not. If such an order did not exist, obeying would mean bearing the brunt. Taking this danger into account, what reason demands is a voluntary cooperation within a coercive system." H.L.A. Hart