Legitimacy, authority, and validity of law: an integrated approach to legal positivism and the methodology of welfare-grundnorm.
The main scheme of this paper is to explain law as a standard that is legitimate, enforceable, and valid. With this fundamental proposition in perspective, this paper discusses why a theory that disregards one of these fundamental features: legitimacy, enforceability, and validity (hereinafter LEV), cannot provide a systematic explanation of law. Additionally, this paper contends that any explanation about the nature of law suffers from inconsistencies, parochialism, and inaccuracy if the explanation either ignores or disassociates the LEVs from their dynamically integrated coherence. Correspondingly, LEVs offer an integrative theory about the nature of law. This paper elucidates how the LEVs separate a positive standard from a normative standard in ascertaining the essential properties of law, and in unambiguously providing a systematic explanation of the nature of law in instituting the positivity of law.
Conceptually, this paper presupposes law as a product of a legal system. (1) A legal system by its existence engenders the nature of law. Analogously, a legal system adopts either an integrative approach to law (IAL) or a disintegrative approach to law (DAL). Under the IAL, all three fundamental features of law, i.e., LEVs exist coherently. On the contrary, under the DAL, only some of the features of LEVs may exist or partly exist, thus the DAL suffers from the deficiency of positivity. Primarily, the DAL remains normative both in its structure and orientation. That is to say, law retains positivity only because of the coherent existence of the IAL. This presupposition brings forth another consistent corollary that laws are not made positive with the mere fact of a position or promulgation.
In fact, the 'mainstream positivism' (2) plainly discounts our presupposition and its corollary by reducing law into the subjection and instrumentality of political power, i.e., political determinism. Indeed, for mainstream positivism, there is no distinction between laws posited by a dictator and laws posited through a democratic process. As a result, like Austin, Hart and Raz anachronistically endorse DAL, as to be consistent with the positivity of law. Hart's famous argument that, 'morally iniquitous rules may still be law' (3) is not objectionable for the IAL on the ground that it denies moral contents of law, but it is faulty because it ignores two important components of the IAL: the legitimacy and validity of law.
A piece of law might be legitimate but not enforceable or valid. Similarly, a piece of law might be legitimate and enforceable but not valid. Or, it might be valid and enforceable but not legitimate. In all these situations, as a regime, a legal system either maintains a unity among the LEVs or ignores their unity, in turn reducing law from its central tendency of positivity to the periphery of normativity. Consequently, under a normative condition or DAL, a dictator is free to posit any law with the political power in hands ignoring the legitimacy and validity aspects of law.
Therefore, one of the major challenges to any theory of law is to systematically offer a methodology that distinguishes the conditions and characteristics of DAL and LEVs in separating positive standards from normative standards, which this paper terms as the 'integrated approach to law'. This paper is a modest attempt towards the direction of explicating the nature of law with the application of IAL. In this attempt, along with its main proposition (i.e., Proposition I), this paper also discusses and supports two complementarily propositions. They are as follows:
Proposition I: Law is a legitimate, enforceable, (4) and valid standard.
Proposition II: The mainstream positivism has ignored the 'Proposition I'. Thus, an integrated approach to law is needed to defend and strengthen positivism by fixing the theoretical and methodological inconsistencies committed by the mainstream positivism.
Proposition III: All posited laws are not positive laws. Only those laws are positive laws, which meet the requirements of the 'Proposition I' because it is the foundation of the positivity of law. In other words, systematically transformed normative standards into positive standards constitute positive laws.
These three propositions are closely linked to each other and thus logically corroborate each other. Therefore, without any watertight demarcation, these propositions are analytically explained in different sections of this paper. Nevertheless, the first section mainly focuses on the Proposition I. Thus, it begins with a brief analysis of the basic conceptual framework of a legal system followed by the exposition of a few theoretical inconsistencies inherent in the mainstream positivism. In this connection, by analyzing the Hartian concept of the rule of recognition, and the Razian idea of authority, the first section of this paper shows how the Hartian and Razian theories are inadequate and unsatisfactory in offering a comprehensive explanation of the nature of law.
To address the gaps persisted by the mainstream positivism in the explanation of the nature of law; the second section of this paper explains the integrated approach to law, mainly focusing on the Proposition ii. The integrative approach employed by this paper explicates the nature of law as built upon the inseparable association of three fundamental conceptual features of law: legitimacy, enforceability, and validity. The aim of the IAL is not to propose any suggestion to discard positivism, but to further explore and strengthen legal positivism. Thus, the second section of this paper defends positivism in the form of an IAL.
The third section mainly explains the Proposition III, offering a methodology of welfaregrundnorm to foster the integrated approach to law, especially by addressing some epistemic questions regarding transmutation of normative standards into positive standards, which are critical to the conceptual account of the IAL. The final part briefly summarizes the main arguments of this paper.
1.2 AN INTEGRATED STRUCTURE OF A LEGAL SYSTEM
Unequivocally, any inquiry about the nature of law invites 'the primary question of the whole discipline of law.' (5) Some legal philosophers, for example, Austin, Hart, and Raz have spent their major works in conceptualizing and theorizing the nature of law. However, some observers consider the quest for the 'nature of norms' and 'the nature of rights' as 'fruitless parallel debates.' (6) Conversely, Kelsen mentions that to fully understand the nature of law, the mere understanding of a single or an isolated rule is insufficient. (7) Since a legal system constitutes the nature of law, thus, to understand the nature of law the relationship between a legal system and the law needs to be clearly appreciated. However, the mainstream legal positivism has failed to characterize a legal system from the benchmark of the unity of LEV. For example, Hart treats validity as a concept built into legitimacy, (8) and Raz examines legitimacy and validity almost conterminous to authority. (9)
Legal systems are not the center of the analysis of this paper. Despite this fact, to complement the analysis of the IAL, it is essential to deal with the basic concept of a legal system. In this respect, the importance of the 'traditional classification of legal systems' (10) cannot be ignored, but it is hard to justify them as fully satisfactory classifications in reflecting the dynamics of modern legal developments. Among other factors, with the emergence of global constitutionalism, (11) a comprehensive recognition of the separation, check, and balance of power among the state organs, and a universal institutionalization of the legislative process of law making, the nature of the traditional categories of legal systems has undergone a paradigm shift, which the mainstream positivism is reluctant to acknowledge. (12)
Today, there are only a few differences between common law and civil law systems. (13) In fact, the same is true for other legal systems too. In essence, more than any time in history, almost all legal systems have converged to a certain extent (14) by commonly incorporating the features of Proposition I. Despite these commonalities, the level of incorporation of the 'Proposition I' is not uniform. Especially in terms of rules, procedures, and institutions there still exist important differences among these various legal systems around the world. In connection with this discrepancy among legal systems, this paper refers legal systems in the world into three categories: the rule of law legal system, a rule by law legal system, and a hybrid legal system. (15)
A rule by law legal system suffers from serious problems of disconnects and neglect of the Proposition I. For instance, North Korea presents a succinct example of the rule by law legal system, where political determinism is a sufficient condition for the existence of a legal system and laws. The rule of law legal system meets all the requirements of the Proposition I and therefore harmoniously unifies the three fundamental features of law. Generally, liberal democratic countries in the world belong to this category of a legal system. A hybrid legal system meets the standard of authority but partly lacks the standards of legitimacy and validity. Thus, in its precise appreciation only the rule of law legal system can uphold the unity of LEV in institutionalizing the positivity of law. To put it clearly, laws are the masters in the rule of law legal system, whereas laws are mere political instruments in other legal systems.
Before examining the IAL in section two of this paper, let us briefly examine the theoretical inconsistencies endured by the mainstream positivism. In the following subheadings this paper shows some key aspects of the inconsistencies of the mainstream positivism.
1.3 THEORETICAL INCONSISTENCY OF THE MAINSTREAM LEGAL POSITIVISM
The terms 'legal positivism', 'positive method of law', 'positive theory of law', 'positivity of law' and 'positive law' seem fascinating, but it is not easy to understand what exactly they mean and convey. Unless the context requires specific use of these terms, this paper uses the term 'positivism' to refer all of these different terms.
Epistemologically, standards regulating and facilitating human and institutional behaviors can be divided into two broad segments: positive and normative. This paper argues that a 'positive standard' is a legal standard that confirms the coherent existence and application of the LEV. On the contrary, a 'normative standard' denotes a concept contrasting with a positive standard. More specifically, the terms 'normative,' 'normativism' and 'ideological' mean or denote a system of values associated with and espoused by religion, culture, political engagements, beliefs, morals, or ethical precepts, which lack legitimacy, enforceability, and validity. In short, normative standards might acquire or hold social acceptability in judging and deciding human and institutional relationships, but still lack the coherent existence of the LEV.
Undeniably, the normative standards can accomplish the processes of the LEV in the forms of rights or authority. For example, a right to religion, a right to conscience, a right to culture and so on evidence the possibility of the transmutation of normative standards into positive standards. Nevertheless, the challenge to the legal philosophy transpires in regard to conceptualizing and developing a theory to explain how the myriad of normative relationships transmute into positive relationships through the mechanism of legal institutional process. Indeed, the mainstream positivism has failed to address this very challenge.
Moreover, the mainstream positivism has mired in uncertainties in answering the basic question, 'what does positivism mean?' It is especially poignant because a number of variations have emerged in the domain of positivism itself. (16) Gardner contends that legal positivism has been united only by themes and not by thesis or common proposition, which questions legal positivism so far as a school. (17) Despite these criticisms and variations, one common point germane to all the variations is a conceptual theory that explains the nature of law.
In this context, some interpret positivism as a theory that is not evaluative in explaining the nature of rules; therefore, it is not value-laden. (18) However, these features of 'not evaluative' and 'not value-laden' cannot postulate sufficient conditions in unambiguously offering the nature of law. Further, the variations themselves are attributable to responses to the question: can there be any value-neutral social fact? In responding this question, the mainstream positivists have often departed from the value-free nature of positivism to accepting minimum content of value or practical reason in their explanation of the nature of law. (19) Against this background, some argue that positivism is either dead or has lost its originality and, therefore, should either be completely buried or fundamentally revived with a sufficiently clear explanation and analysis.
The task of the explanation and analysis of positivism has also become overwhelming, especially because of the incommensurable variations within the mainstream positivism. There are at least half a dozen variations in the mainstream positivism. First, analytic theory argues that rules are value-free because the meaning of a rule is free of value. That is to say, the meaning of a concept is already contained in a rule, which is closed and cannot be changed by the value system. This version of positivism is particularly associated with Joseph Raz. Second, imperative theory describes rules as value-free concepts immune from the experience of the subject. That is because the value or experience of a subject cannot change the meaning of a concept contained in a rule commanded by the sovereign. John Austin is considered the godfather of this version of positivism.
Third, semantic theory claims that rules reflect a boundary concept. That is to say, concepts are bounded rules followed by linguistically determined meaning, which itself is a social fact. In this sense, rules are supposed to be empirical and not normative. But 'social facts' themselves cannot be positive, rather they are often normative. This version of positivism is associated with H. L. A. Hart. Fourth, as rules are social facts, they logically involve social values and therefore adopt minimum contents of norms. Though, as social facts, rules are fundamentally descriptive and not evaluative. However, this proposition eludes the basic normative nature of social facts. This version of positivism is also associated with H. L. A. Hart.
Fifth, the separability thesis claims that law and morality are two mutually distinct concepts and, therefore, morality has nothing to do with the validity and authority of rules. This version of positivism is associated with H. L. A. Hart & Joseph Raz. (25) Sixth, as rules are purposive social instruments, they cannot completely depend on plain facts alone. They have to consist of practical reason. Therefore, Joseph Raz and Ronald Dworkin claim practical reason as the ground of positive rules, (26) but in sharply different ways.
In addition, the use of the term 'normativism' to mean standards that are value-free and therefore close in meaning to positivism poses another deep contradictions in the domain of legal positivism. This obfuscation is especially contingent in the case of explaining and understanding Kelsenian normativity or normative order. Kelsen's norms are both value-laden and value-free. In both of these contexts, they validate one another. This smokescreen further leads to the invention of a concept like 'normative positivism,' (27) which is unbearably elusive.
Further, the concept of normativism becomes even more complicated when the mainstream positivists like Hart and Raz admit the role of a value system in recognition of rules. Hart observes that both Bentham and Austin never denied that, as a matter of historical fact, the development of legal systems has been powerfully influenced by moral opinion, and conversely, law has profoundly influenced moral standards, so that the content of many legal rules mirror moral rules or principles. (28) Normative jurists like Liam Murphy suggest that the cause of positivist discord is actually inevitable. It is because of the equivocal positivist explanation of law and its epistemic uncertainty that gives rise to normativism as an alternative legal thought to positivism. (29) However, critics argue Murphy's primary reason for rejecting morally and politically neutral legal theory is the supposedly insurmountable epistemic difficulty of knowing the real grounds of law. (30) Most notably, normativism inspired many jurists to begin with the truism of viewing law as a normative social practice. (31)
Despite the contradictions in the mainstream positivism, this paper argues that law is distinguishable from all normative standards of social, political, cultural, moral, and economic orders because of its unique property, i.e., positivity. Barring positivity, law is indistinguishable from normative standards. This paper argues that positivity is a minimum as well as an optimum condition of law. There are no less and no more conditions for law than positivity itself. This claim requires showing the features establishing positivity of law by separating it from normative standards, which is in fact at the core of the inquiry of this paper. For analytical convenience, this paper terms all these normative standards as the ideologically determined political order. It is because the political condition is one, which governs human relationships and facilitates cooperation on the basis of ideology, religious belief, ethics, morality, socioeconomic arrangements, socio-cultural networks, and organizational, and institutional setups among others.
There always appears a critical co-relationship between the political order and the positivity of law. Often, a political order as the apparatus of power tends to define legitimacy and validity within the framework of authority, which disapprovingly undermines legitimacy and validity aspects of law. Nevertheless, for mainstream positivists the authoritative political condition is the only determining feature of the nature of law. As a result, the mainstream positivism fails to explain the distinction between the rule of law, a rule by law, and a hybrid legal system. The root of the theoretical inconsistency of the mainstream positivism, thus, emanates from its reliance on the unsatisfactory realm of the political determinism of law.
Political determinism is the common unifying theme of the mainstream positivists, especially amongst Austin, Hart, and Raz. The Austinian idea of law as the command of a sovereign is a comparable bedfellow to Mao Zedong's idea of politics, which projects the power of state or politics as the only factor determining both base and superstructure including law. In one or another form, the concept of political determinism of law reflects the supremacy of politics over law. With the overtone of political supremacy, for positivist jurists like Austin, Hart, and Raz, among others, the mere fact of the existence of law is a sufficient condition for the positivity of law; although, methods of the explanation of the existence of law vary among them.
For Austin it is the command of the sovereign, whereas for Hart it is the rule of recognition that makes the union of primary and secondary rules possible. For Joseph Raz it is authority that brings law into existence. Despite these distinctions, as mentioned above, the core epistemology of all these three jurists corresponds to the idea that the mere existence of law is the sufficient condition for positivity. Thus, the mainstream positivism clearly denies any role for positivity at the stages of the making of law. For Hart, the making part of law is the union of primary and secondary rules, where the mere recognition of officials is enough to establish the existence of law as a social fact.
However, one of the weaknesses of the Hartian idea of 'social fact' is that it eludes the normativity internalized in social facts. Further, if both primary and secondary rules reflect the same social facts then logically both should be equally normative and consequently the union should make no difference in the normativity of social facts. For Raz, the 'content' of law alone, which is 'authoritative,' engenders the very existence of law. (32) In fact, the Razian term 'authoritative' is synonymous to Austinian 'command'. Besides self-claimed positivity through the existence, the mainstream positivism ignores the state of positivity in each of these three stages of law (e.g., making, (33) application, (34) and interpretation), which reduces law from the realm of the rule of law to the system of a rule by law. Although, it does appear that Hart somehow tried to moderate the extremist form of Austinian political determinism, while Joseph Raz seems reinventing it in the form of a rule by law system.
Besides recognizing Hayek's observation (35) on the rule of law as one of the clearest and most powerful formulations of the ideal of the rule of law, (36) Raz finds that some of the conclusions of Hayek could not be supported. (37) The Razian discontent to Hayek's idea of the rule of law springs from his belief in the political conception of law. Raz claims, "The rule of law is a political ideal which a legal system may lack or may possess to a greater or lesser degree." (38) Raz further argues that there is no conceivable connection between the rule of law, justice, and democracy. It is because in a society where there is no democracy, where there is poverty, inequality, lack of human rights, racial segregation, gender discrimination, et cetera, society can still have the existence of law. (39) Thus, he reduces the rule of law into a rule by law by arguing that, like political doctrines, the rule of law varies in details and thrives in a variety of political and cultural environments with different meanings. For Raz, the rule of law is not a universal moral imperative. (40) Joseph Raz's explanation of the rule of law is utterly reductionist and unsatisfactory because neither it adequately distinguishes the concepts of the rule of law and a rule by law, nor it brings the normative political authority (command) within the methodological framework of positivism.
Similarly, hart's concept of the rule of recognition, which he considers a sufficient condition to determine the nature of law, also sustains a number of flaws; among them, it is typically alien to the idea of judicial review over legislative acts. In fact, in the UK, which adopts parliamentary supremacy, the idea of judicial review of the legislative action was missing for a long time. For example, let us say, a piece of legislation (statute) adopts a principle that limits judicial review. Can recognition by parliament of the principle of limitation on judicial review stand as a principle governing the legal system? It was true for Hart and the UK as well, especially before the adoption of the Human Rights Act in 1998, the institutionalization of the supremacy of EU laws over domestic laws, and the emergence of the WTO legal system that requires domestic laws to be compatible with the WTO rules.
For many legal systems it would be inconceivable to deny the review of the validity of the legislative action by the judiciary. For instance, in the United States, judicial review was regarded as a natural function of the judicial department even before the adoption of the Constitution. In India, on a number of occasions, definitively beginning with the famous Golak Nath case of 1967, (45) the Indian Supreme Court has struck down any legislative attempt that curtailed the power of judicial review in any form. Even in the UK, after the enactment of the Human Rights Act, the doctrine of judicial review has been expanded from the narrow scope of only reviewing the administrative actions to the review of legislative actions as well.
Against this background, the question may arise, 'is the mainstream positivism doctrinally certain?' The simple answer is "no." This uncertainty persists because of the three fundamental reasons in the tradition of mainstream positivism. They are:
* Philosophical dissonance;
* Narrow and unrealistic engagement of mainstream positivism; and
* Faulty explanation of social facts.
There might be more than these three reasons for doctrinal uncertainty of positivism. However, this paper considers these three as the fundamental ones, which are briefly discussed below.
1.3.1 Philosophical Dissonance
Conceptual analysis of law is at the core of positivism. Nevertheless, philosophical dissonance lies at the very heart of the mainstream positivism in regard to conceptual analysis of law. This dissonance is due to the failure of mainstream positivism to clarify the nature of a 'concept' itself. The question about the nature of a concept is one of the most enduring legal philosophical questions. It is so alluring that the division of the schools of thought between Plato and Aristotle, and since then among philosophers and jurists, is particularly associated with the very question of the nature of a concept. Hart's view about 'concept' offers a threshold to enter into this lasting theoretical treasure and debate. A concept, for Hart, is a general framework of legal thought; or more explicitly speaking, a concept is about the meanings of words. In particular, a concept is a tool that distinguishes 'internal' and 'external' dynamics or meanings of rules, which 'depend on social context.' (46)
The internal and external meaning of an object entails a long philosophical underpinning from Plato, Aristotle, Wittgenstein, Hohfeld and indeed many other jurists and philosophers most notably Bentham and Hart. In a more generalized or simplistic form, the nature of a 'concept' is considered positive if the internal meaning of an object determines the concept without any external influence. In this sense, the concept is independent of the values of a decision maker. Thus, the Austinian command of a sovereign, Hartian internal point of view, and Razian authority all fail to offer methodology by which the legal concept would be independent of the values of the decision maker. In other words, only if the concept is not normative, then it is positive. Hence, the nature of a 'concept' is contemplated normative if the external factors determine the nature of an object. That is, the concept is dependent on the values and experiences of a decision maker, which is the case of the command theory, and the rule of recognition.
The dissonance in positivism emerges from this very issue: whether a 'concept' is dependent on the values and experience of a decision maker or is independent of them. For example, in a dialogue between his tutor, Socrates, and Euthyphro, (47) Plato highlights the importance of internal property as a factor for an explanation of a positive concept. The dialogue was about an indictment. Euthyphro, a prosecutor, was preparing an indictment against his father, who had allegedly murdered a slave (servant). Euthyphro's idea is that one should not look at who acts, but should look at what is acted. If the act is wrong, then no matter who does it, they should be liable. It would be impious not to prosecute. However, Euthyphro's relatives and family members believed that prosecuting one's own father was impious.
On the standards of the determination of the form or appearance--pious or impious-Euthyphro and Socrates differ diametrically. Transcendental judgment--wherein if god likes something, it is pious and if god dislikes something, it is impious--was the standard for Euthyphro. For Socrates, it is not pious because god likes it and it is not impious because god dislikes it. In fact, it is pious, which is why god likes it; and it is impious, which is why god dislikes it. The judgment of pious or impious does not depend on the discretion of a decision-maker or the external factors. Rather, the internal property is the impeccable standard of judgment. Therefore the decision-maker should be bound to have a judgment based on the nature of a 'concept,' independent of the decision-maker (a positive standard of a concept). In this dialogue, Socrates is the interlocutor espousing Plato's views. Surely, it would be apt to know whether law-makers (decision makers) adhere to the standards of Euthyphro or the standards of Socrates. In short, it is important to know that whether making rules is governed by a normative standard of a concept or by a positive standard of a concept.
The Platonic idea of the nature of a concept is undoubtedly valuable to explain and or analyze the nature of making rules. However, Plato left the question unanswered: why was the concept not understood or recognized by Euthyphro and his family members similarly (i.e., positively), independently of experiences, values, interests, and prejudices? A satisfactory answer to this question is what we need in our quest for transforming concept into construct (a positive standard) in the making, application, and interpretation of rules.
Aristotle, who studied for twenty years with Plato, turned out to be the most elegant and fervent critic of Plato. Nevertheless, Plato appreciated Aristotle as the mind of his school, the appreciation for which every academic was zealous. The major difference between these two great philosophers was about their view on noumena and phenomena. For Plato concepts were noumena (i.e., independent of human biases). For Aristotle no such thing would exist out of human mind and experience, but rather in the human senses alone (i.e., phenomena). For Plato, phenomenon was not a form but an appearance based on human experience of an ad hoc nature and therefore readily changeable. In opposition to Plato, for Aristotle the concept was phenomenal (i.e., an abstraction of the rational process based on senses and experiences). In short, the value-free nature of the concept of Plato and the value-laden nature of the concept of Aristotle are apt to divide the whole philosophical regime and schools of thought. (48) Ironically, both Plato and Aristotle are designated as normativist and positivist interchangeably.
Following aristotle, reason, induction, experience, experimentation, verification, and empiricism obtained a key place both in philosophy and social science. The Western world was exposed to these developments in the late twelfth century when scholastic traditions combined Aristotelian reason with theology, especially the movement led by Saint Thomas Aquinas. (49) In the fourteenth century scholastic philosophers, including William of Occam, (50) paid much attention to reason, induction, experimentation, and experience rather than revelation, as the sources of knowledge, but at the same time they were also engaged in combining theology and Aristotelian reason into a single philosophical framework. In the sixteenth century, Bacon used the inductive method for scientific inquiry but he was as much a critic of Aristotle as Aristotle was of Plato. (51)
Most interestingly, rationalism in the sixteenth and seventeenth century retained reason as the tool of analysis and a source of knowledge but rejected sensory, experimental, empirical, and inductive methods. (52) Rationalism did not only refute Aristotelian induction but tried to combine reason with Platonic deduction. However, Rene Descartes, the leading figure of the rationalist philosophy (53) in the eighteenth century rekindled the Aristotelian reason, combining it again with induction, experimentation, experience, and empiricism. The age of enlightenment gave birth to some great philosophers like Jeremy Bentham, August comte, Adam smith, and others.
Before the development of Western philosophy, positive concepts and normative concepts had almost a clear distinction and different category. However, when Western philosophy emerged after the twelfth century despite its great contribution to the field of science and philosophy, it also happened to blur the distinction between positive and normative concepts. As a result, Platonic positivistic concepts started to be treated as normative and Aristotelian normative concepts started to be treated as positive. This development ultimately led to a number of variations in the understanding of positivism itself. As a result, Hart found a minimum content of morality in positivism (54) and Joseph Raz, the contemporary defender of the mainstream positivism, has found positivism in practical reason. (55)
Wittgenstein, the legendary figure, who refutes his own earlier philosophy, is touted as the representative of twentieth century positivism. He was supposed to solve the problem fraught with reception, rejection, and innovation of the Greek philosophy in the Western philosophy. (56) He characterizes a 'concept' as a common reference in his Philosophical Investigations. (57) For example, a 'game' is a concept. There are many types of games, but when we refer to something as a 'game' we can find commonalities, similar characteristic features (family resemblances) between different games. In other words, concepts are 'formulated boundaries,' which refer to kinship. For Wittgenstein, the commonality is a 'family resemblance' and the 'rule following.'
Now a question arises: did Wittgenstein solve the problem of philosophical dissonance, as claimed by Russel? How does his philosophy of 'rule following' help making positive rules? Let us take a classical example from the most-favored nation treatment (MFN), a rule developed at the domestic level and extended to the international level during the formation of the General Agreement on Tariffs and Trade (GATT) (58) as a cas e for testing the idea of Wittgenstein. The negotiating history of the MFN clause shows that the US and the UK could not harmonize their concepts into a single construct. At the end of the day, they fit them into a single odd framework of different constructs. (59) This example also demonstrates the complexities of transmuting concepts into a construct in making rules.
Against this backdrop, we can say that the methodology of 'rule following' offered by Wittgenstein could not help harmonizing the different concepts between the US and the UK on the MFN. This is because the rules the US and the UK followed in forming the concept were different and incompatible. In many cases, the same is true in making rules at the domestic level. For example, it is not necessary that all concepts produced by different Members of a legislative body follow the same standard while designing their concepts. Therefore, Wittgenstein's methodology, despite being an important innovation, is not very helpful in our pursuit of transforming normative concepts into positive constructs.
A further question arises: why do actors (e.g., members of a legislative body) differ on a concept? Plato left this question unanswered. Wittgenstein engaged in answering this question. For him, the difference occurs because of the very nature of the concept itself. Suppose someone points to a vase and says, 'look at the marvelous blue--the shape isn't the point.' Or, 'look at the marvelous shape--the color doesn't matter.' (60) Without a doubt, individuals will do something different when they act upon these two invitations. Why does this variation take place?
Wittgenstein says it is because of the very nature of the concept; it is not the things by themselves that make us differ. Wittgenstein's idea of 'concept' reflects the variations associated with normative experiences. Thus, it can be asked whether we are left in a position to justify both the contradictory concepts of the US and the UK about the MFN issue as mentioned above. Should content-indifferent but value-laden experiences govern the domain of making rules? The argument of this paper is 'no.'
Further, Wittgenstein explains this variation as a result of the differences in interpretation, which may consist of how one makes use of the object stimulated by characteristic experiences. The 'characteristic experience' is influenced by the possibility of various learning, understanding, and uses offered by the concept itself. For example, the concept 'to point to this thing' (61) (e. g., an MFN treatment) can be used in a number of different ways. The most important contribution of Wittgenstein on concept is that 'concepts are independent of the existence of a thing or an object.' This idea about a 'concept' of Wittgenstein is widely considered a positive concept, but it is truly a normative one for Plato. Or, it can be said that how a concept should be treated--positive or normative--is not free from controversy, which the mainstream positivism could not solve and consequently persisted in the doctrinal uncertainty.
A. J. Ayer, who is considered one of the leading figures of logical positivism, claims that there is nothing in the nature of philosophy to warrant the existence of conflicting philosophical schools. He therefore proclaimed he would provide a definitive solution to the problems that have been the chief source of controversy among philosophers--the nature of 'concept' itself. (62) To solve this controversy, Ayer held a position that no concepts that transcend the limits of all possible sense-experience could possibly have any literal significance. Rather, it would produce nonsense. (63) The criterion Ayer used to come to this conclusion is the criterion of verifiability. (64) For him, only verifiable concepts are useful and non-verifiable concepts are useless. He claimed that metaphysical concepts are not verifiable, thus they are useless. All verifiable concepts are positive concepts for Ayer. He focuses the debate between metaphysical and positive concepts. Most importantly, all sense-experienced concepts are positive concepts. In this way, Ayer is one of the typical representatives of the European philosophical style that blends positivism with normativism, which at the end of the day fails to solve the problem of doctrinal uncertainty because normative standards also recollect senseexperienced concepts.
Joseph Raz specifically recapitulates that philosophers have failed to offer a clear explanation and analysis of a 'concept.' It is because they have failed to distinguish between the nature of a concept and the explanation of the nature of the concept itself. (65) In this context, this paper makes two points. First, philosophically, the mainstream positivists are unable to explain the nature of a 'concept' independent of normative engagement. Second, there is no uniform version of positivism; consequently, the mainstream positivism in its existing form is mired in doctrinal uncertainty and detached from solving practical problems related to the nature of law.
1.3.2 Narrowness of the Mainstream Positivism
As discussed above, there is no specific version of positivism. In this regard, Alf Ross observes that positivism has tried to secure its identity by dissociating itself from natural law. However, the form of positivism is confused, owing to a lack of clarity as to the meaning of 'legal positivism,' a term rarely if ever defined with precision. (66)
Further, it is clear from the above discussion that the European tradition has often blurred positivism with normativism, being heavily influenced by Aristotle and trying to harmonize Platonic ideas with Aristotelian ideas. The impact of this European tradition is particularly noticeable in analytical jurisprudence, which claims the analytical jurisprudence as a Western philosophical product. (67) Analytical jurisprudence depicts a value-neutral concept as positive. (68) Thus, the major venture of the mainstream positivism is to explicate law as a value-neutral institution. In this regard, it tries to separate law from morality by characterizing law as a command of sovereign or the union of primary and secondary rules. It is interesting to note here that some jurists claim there is no such thing as value-neutral. Professor Bhala's response is that this attempt at separation is itself a value-based assessment. (69) Therefore, it is still abstruse regarding how Austinian command or hartian internal point of view could be value neutral. Indeed, on major historical turning points, despite standing on vulnerable grounds, command theorists succeeded in hoaxing common people for the benefit of their ruler.
It is in no way a convincing claim to state that the command of a sovereign or the internal point of view is a value-free standard of law making. It is also equally preposterous to claim that the command is positive on the ground that the sovereign is unlimited and thus does not yield to a command of others, and implements his command through a threat of punishment. This idea of Austin is not only shocking, but disliked by many including by H. L. A. Hart. (70) It was understandable to Hart that the separation of command (law) from morality alone could not offer a methodology with sufficient justification to assign it with the feature of positivism. Therefore, Hart tried to refine positivism from the deficiencies embedded in earlier versions of positivism, especially in Austin's theory. (71) Therefore, he offered a methodology of the 'union of primary and secondary rules' (72) that brought mainstream positivism at the center of the legal philosophical discourse.
For hart, law enacted by the sovereign is positive because it is internally accepted and the meaning assigned by the sovereign cannot be changed by external values or moral considerations. However, for hart, law could consist of minimum moral content in two contexts--in the form of primary rules before they are turned into secondary rules and in a situation of penumbra. Not only that, the internal acceptance is itself a value-laden act. Nevertheless, the differences between Austin and hart create two categories of positivist thought: exclusive positivist, and inclusive positivist. (73) Austin was thus designated as an exclusive positivist because he completely denies the role of moral considerations in law, whereas hart is designated as an inclusive positivist because he accepts the minimum content of morality in law. (74) Joseph Raz does not agree with either Austin or Hart. He claims that law is not identical with the concept of law, which Hart and other legal philosophers of law sought to explain. (75)
The Hartian concept of the internal point of view assumes acceptance and awareness of the rules by its officials and also by its people. However, Raz criticizes the concept of internal point of view claiming that, "... there is nothing else in the concept of law, which requires that people be aware of their institutional structure as a legal system in order for their institutions to constitute a legal system." (76) But Raz himself argues that 'different cultures have different concepts of law and there is no single concept of law'. It is because the concept of law is 'entrenched in our society's self-understanding.' (77) Moreover, for Raz, "... law can and does exist in cultures, which do not think of their legal institutions as legal, and a theory of law aims to give an account of the law wherever it is found, including in societies which do not possess the concept of law." (78) In short, as argued elsewhere, the mainstream positivism appreciates the mere existence of law as the adequate condition for the positivity of law.
From this discussion it is clear that the way mainstream positivist jurists are explaining and trying to justify positivism is fraught with both theoretical and methodological problems. Theoretically, they are narrowly engaged in separating law only from morality and not from other normative standards, and methodologically they are erroneously confined to project command (practical reason, or authority, or the rule of recognition) as the tool or source of positivism. In short, for them, a formalized human experience is a positive concept in the form of a rule. Due to their theoretical and methodological narrowness some critics hurl severe criticisms at positivist jurists saying that the analytical focus of positivist jurists has done much more harm than good, their presumptive refinements have been outweighed by their narrowness and abstraction. (79) Against this backdrop, Karl Llewellyn once remarked that it would be much better if the analytical project were abandoned. (80)
These criticisms against positivism cannot be easily ignored. This is because of the failure of the mainstream positivism in distinguishing positive and normative concepts, and its excessive engagement in abstraction rather than developing a specific methodology. However, it would be unfair to level all these criticisms to the same extent against Jeremy Bentham. In his book, Theory of Legislation, (81) Bentham offers a modest solution to these problems of conceptual inseparability and gaps in methodology. He upholds that social concepts or facts are primarily normative; therefore, are often flexible and uncertain. For him, the task of making law is to turn these uncertain normative concepts into a construct of certain meaning as rules, for which a specific methodology is needed. For this reason, Bentham offers utilitarianism as the methodology.
Against this backdrop, it is understandable that the process of legislation may encounter with politically varied, normatively sustained, and socially contested concepts. But the question is: how does the Benthamite utilitarianism help to transform these contested normative concepts into positive constructs? The answer the Benthamite utilitarianism offers rests on the application of the utilitarian calculus by recognizing the greatest happiness of the greatest number, which may lexically ignore the aspirations of minority. Therefore, it apparently redounds to a majoritarian bias. The utilitarian idea built on a naive democratic process of majoritarianism may unleash the 'majoritarian tyranny,' as questioned by John Rawls. (82) These deficiencies in the utilitarian concept need to be removed by creating a condition that does not compromise or limit the welfare of the key stakeholders; rather, it would help to expand the welfare and choices of all stakeholders. Successively, the methodology of welfare-grundnorm addresses these weaknesses of utilitarianism, which is discussed in section 3 of this paper.
The discussion above suggests two major challenges ahead. The first challenge is to address the problem of philosophical uncertainty inherent in the mainstream positivism by suggesting a doctrinal certainty. The second challenge is to offer a methodology that could be applied in transmuting normative standards into positive standards through making rules. The idea of doctrinal certainty is discussed under section 2 of the paper and the methodological issue is discussed under section 3 of this paper. However, before we discuss these issues, one important issue relating to social facts needs to be dealt, which follows herein after.
1.3.3 Are Social Facts Invariably Positive?
The controversy between Plato and Aristotle on noumena and phenomena is fundamentally due to an imprecise epistemology regarding the distinction between positive and normative aspects of a natural and social 'concept.' However, it should be noted that often it is difficult to have a clean delimitation or individuation between natural and social concepts. (83) The Platonic idea that internal properties of entities exist beyond human values or norms and are therefore positive is basically a concept associated with natural things or facts. Taking the same example discussed above about the dialogue between Socrates and Euthyphro on the murder of a slave, it can be observed that the murder is both a natural and social fact. The death of the slave could not be changed by human experience or values. What could be changed or be subjected to human values is the system of penalty. Where Plato did make a mistake is that he tried to offer the same standard for both natural and social concepts. He did not see a major distinction between the positive and normative aspects in natural and social concepts.
The complexities in explicating social fact involve because social facts encompass both positive and normative concepts. For example, 'dumping' is a socio-legal fact. When it takes place the nature of dumping cannot be changed by human values. What is subject to human values is how we define dumping and calculate dumping margin. Plato denies the intricately involved positive and normative aspects of social facts; whereas, Aristotle committed an error by subjecting all social facts to human experiences and values. After the end of Dark Ages, the European philosophers tried to blend Platonic and Aristotelian concepts but ended up producing confusion and epistemological uncertainties. In the twentieth century, some European and American jurists tried to solve this epistemic uncertainty by offering a method of 'normative positivism.' Among them, Kelsen, Hart, and Roscoe Pound are examples of some of the more prominent.
Kelsen claims that social facts primarily consist of two elements. First, they are acts or happenings as external manifestations of human conduct; and second, they are given a certain meaning by law. For example, physically (objectively) a death penalty and a murder are similar facts, but legally they are treated with different meanings. The legal meaning is an assigned meaning, specifically derived from and interpreted according to the norm. Therefore, the norm functions as a scheme of interpretation. Consequently, any concept that is legitimized is derived from normative interpretation, but norms themselves are created by human acts. One norm validates another norm. As a result, there will be a chain of norms validating each other. One norm validates another norm to act and create yet another norm. (84)
In this way, a norm consists of two elements: an authorizing, permitting, or commanding element, and an element of reason for doing, observing, or following. The norm that demands or commands doing certain things in a certain way qualifies as 'is' and therefore it is positive because the meaning is certain. Similarly, the norm that provides reason to do things is an 'ought' and the reason is formed based on a social value system that assigns meaning; therefore the 'ought' is normative. (85) In short, Kelsen brilliantly analyzed the normative and positive contours of a concept and explained how social values form the reason and source of rules.
Kelsen more precisely states that legislative acts in fact create or posit a norm. However, the legislature is also supposed to act in a certain way. The content of the norm posited by legislature is validated or derived from another norm that is a higher norm, which can be a constitution or a social practice that provides the reason for forming the content of a norm, and it therefore acts as a higher norm. Any norm can be a higher or basic norm (grundnorm), provided that it would justify or validate the norm-positing act. (86) For Kelsen, each norm consists of a positive and normative concept. That is why Kelsen offers the methodology of 'normative positivism' to analyze the nature of a norm.
Yet, it is still a matter of inquiry whether the Kelsenian method of 'normative positivism' could help solve the problem of methodological uncertainty. Kelsen's contribution in this regard is particularly important in the sense that he points out that a norm as a social fact consists of both normative and positive concepts that are closely interlinked but have separate identities. However, his weakness lies in his failure to offer a methodology of individuation that could dissociate positive concepts from normative ones and further could transmute the normative concepts into positive ones. For example, by applying Kelsen's 'normative positivism' the concepts of the US and the UK on the MFN can be treated as both 'is' and 'ought' because they each have their own elements of reasoning.
When validating norms contest each other, as in the case of MFN, Kelseninan 'normative positivism' cannot offer any specific methodology to solve the problem of contestation. For example, 'zeroing' is a social fact. One group of countries, led by Japan, called the Friends of Anti-Dumping Negotiations (FANs), are arguing for prohibiting zeroing in the World Trade Organization (WTO); (87) whereas the US is trying its best to legitimize zeroing in the Doha Round. (88) The norms of the US and the FANs are quite diametric. These contesting norms reflect reasons that are socially assigned, (i.e., locally assigned). This local assignment of a norm creates more complexities for harmonization of a concept at the global level. Kelsenian 'normative positivism' is thus unable to provide a specific epistemology to harmonize the contesting concepts on 'zeroing.'
The American version of 'normative positivism,' as espoused by Murphy, is more vulnerable than the Kelsenian form of 'normative positivism' to address the issue of methodological uncertainty. For Murphy, the 'common good' is a normative concept, which politically justifies having a force to provide authority of law. He claims the reason giving power of law flows from the 'common good' of the political community. practical reason and rational desirability are the basis of common good, which propel the decisive reason for action. (89) Murphy discredits any possibility of morally and politically neutral concepts, but he claims that politically and morally backed concepts are still positive ones. This duality of approach for Murphy is due to epistemic uncertainty. His main ideas can be summarized as follows: (90)
* The methodology of politically neutral conceptual analysis is a counterproductive means for explicating the concept of law.
* The corresponding morally and politically neutral evaluative criteria for theory choice are impotent in the face of epistemic uncertainty.
* Therefore, there is no alternative but for legal theory to be practiced as a subset of political theory, which aims to produce the best moral consequences.
In short, Murphy insists on the concept of law as a practical aspect of political theory. (91) Murphy's methodology allows moral political considerations to supplant morally and politically neutral standards. This approach is thus even more of a challenge to legal positivism than solving any methodological or doctrinal uncertainty. In short, Murphy's 'normative positivism' fails to offer any methodology to solve the problem of contested norms in making rules.
Hart's contribution in this regard is particularly important. (92) His book, The Concept of Law, is itself an essay in descriptive sociology. He claims that concepts depend on a social context. (93) Like Kelsen, Hart also distinguishes social facts into positive and normative concepts. He discusses concepts with a multitude of ideas--close v. open, logic v. experience, beatitude v. fallacy, determined v. independent, and so on. If a 'concept' is closed, logical, beatific, and determined, then it is analytical or positive. If a 'concept' is open, experience based, and independent, then it is normative or utilitarian. (94) Therefore, in Hart's observation too, concepts have both normative and positive aspects.
'Individuation' is the methodology Hart employed in investigating normative and positive aspects of concepts. Hart specifically points out that when the real nature of a concept is not identified and properly analyzed it turns into excessive preoccupation in abstraction disjoined from the conditions under which it has to be applied in real life. (95) The problem further consists of our blindness and obsession with the process of concept formation. Concepts are the product of social and individual interests, but we readily ignore the concepts of others and become obsessed with our own. This either obliterates the need for utilitarian investigation or hinders transmutation. More importantly, the problem consists of ignoring the ends and the purposes of concepts, refusing to ask the question: why is the concept thus and so?
A social context consists of a plurality of normative and positive concepts that design structural relationships. This is to say, they represent the interests of different groups and aim to set or structure their relationship. To put it simply in the context of trading relationships, concepts represent the interests of producers, consumers, and governments. The more imbalanced interests are carried by the concepts, the more protectionism becomes the structure. As discussed above, Hart's analysis helps to individuate the positive and normative aspects of social concepts. Nevertheless, Hart fails to provide any specific tool to address the problem of the protectionist structural relationship caused by conceptual disarray or imbalances.
Raz clearly argues that, "The existence of a rule is admittedly a fact. We can say 'It is a fact that there is a rule' ... and if such a statement is true then it is a fact that there is such a rule. Yet even if every true or justified deontic statement states a fact it does not follow that every such statement is a statement of a rule. On the contrary, there is clearly not the case." (96)
Roscoe pound proposes a methodology of 'social engineering' to solve the problem of conceptual disarray or imbalances by managing contesting interests. (97) Pound observes that a legal order always confronts adjusting free will and satisfying wants--free exercise of the will is but one. Wants generate interests and procure claims--individually, publicly, or socially. But when these interests conflict with each other the real problem arises about how to engineer these interests. Roscoe pound offers a very simplistic solution or methodology: individual interests should subsume under social interests. (98) However, the crux of the problem does not end here. The social interest needs to be designed by harmonizing the contesting individual interests. The contesting individual interests do not easily yield for the sake of common interests, as discussed above (for example in the 'zeroing' case). Thus, the 'social engineering' theory of pound lacks a methodology to reciprocate individual interests into common interest.
Hohfeld (99) finds that there is a 'boundary conflict' between legal and non-legal concepts. He proposes a methodology of separation of legal concepts from non-legal concepts. This certainly demands reflection about whether or not the problem of making rules is associated with this 'boundary conflict' (i.e., separation of legal concepts from non-legal concepts). The problem is so apt because in both sets of relations--the legal and the non-legal--a stream of ideas is continuously associated. Hohfeld analyzes two types of facts that create a jural relation: an operative fact and an evidential fact. On the one hand, the operative fact consists of constitutive, casual, and dispositive factors.
It shows the existing relation, and indicates a trend of change in creating a new relation. on the other hand, the evidential fact is one that offers some logical basis (not conclusive) for inferring some other facts that might be constitutive facts or intermediate evidential facts, which help to reach a conclusion. This Hohfeldian idea of 'construct' formation is certainly instructive to law-makers in understanding and applying positive methodology. In the Hohfeldian model, the method that distinguishes legal and nonlegal concepts is the idea of jural relation. When jural relation is assigned to a 'concept,' irrespective of its normative nature, the concept becomes a legal concept. The Hohfeldian methodology of jural relation is undoubtedly a significant methodology in explaining the nature of rules, but not expedient in harmonizing and transforming normative concepts into positive ones.
Against this backdrop a question arises: when jurists have failed to offer a convincing methodology, have philosophers offered a better and more convincing methodology to ensure epistemic or methodological certainty of positivism? The brief answer is 'no.' Among others, again two philosophers are specifically mentionable here--Wittgenstein and Ayer. Bertrand Russell projected his student, Wittgenstein, as the philosopher who could offer a solution to the problem of methodology in explaining the nature of a 'concept.' (100) Ayer proclaimed himself to offer a solution to this fundamental philosophical problem. In short, as discussed above, both failed.
The methodology of Ayer's verification principle is neither sense-experimental nor observational, because for him both of these methods are fallible. (101) Fundamentally, his method is one of purely logical consideration. (102) Verification by sense-experience is confuted and therefore not logically valid. If a validity proposition is subject to the test of actual experience, then that could never be logically certain. (103) All propositions (concepts) are either empirical or a priori. (104) Logically, all concepts are not certain but probable, (105) and these symbols are basically assigned and derived from our belief system. (106) Therefore, all propositions, whether empirical or a priori, are verified in the same way. (107) Ayer's logical method is not about validity or invalidity, but about eliciting the consequences of our uses of the concepts. The uses themselves may vary and become incompatible, though it is not because the uses of the concepts are by their very nature incompatible, but rather because of an error in logic. (108)
The way Ayer provides his philosophical, methodological analysis is undoubtedly interesting in the context of making rules. It also certainly helps to explain the occurrence of conceptual divergences, which for Ayer is due to logical error. Consider the example of 'zeroing.' There are at least two divergent concepts about zeroing in the Doha Round negotiations: the American and the FANS concepts. The weakness of Ayer's methodology is that it does not help us to know which of these two concepts is logically erroneous. In fact, Ayer does not provide a convincing methodology by which the error in logic could be identified and solved so that the conceptual divergences could be harmonized. Rather, to a certain extent, Ayer's methodology in itself seems complex, unclear and also self-contradictory. One example is his claim that the positivist methodology of verification is false because empirically or by observation no such thing exists, which could be conclusively verified. Further he claims that positivists do not apply their criteria consistently. (109) On the contrary, he justifies a rationalist process of deduction, in particular the a priori tool coupled with tautology. (110)
Post-Wittgenstein developments are certainly interesting. One of them is the development of Wittgenstein's concept of 'formulated boundary' in Concepts: Core Readings. (111) The arguments claim that, given their importance to cognition, concepts raise so many controversies ranging from the local to the global level. This is a very important statement, which is especially relevant in the context of making rules both at domestic and international levels. It encourages us to ask a question: what makes the concept so apt or powerful, raising controversy from the local to the global level? The answer offered by Laurence and Margolis is that it is because of 'boundary conflict'--when the behavioral abilities and scope of the issues at stake radically differ on what ought to be achieved--concepts become controversial. The idea of 'boundary conflict' is useful in comprehending why social facts are loaded with controversial normative concepts. Yet, Laurence and Margolis do not suggest any concrete methodology to mitigate the 'boundary conflict.'
In short, Wittgenstein's positivistic concept and Platonic positivistic concept produce quite distinct ideas. Like Aristotle, for Wittgenstein, concept exists independent of the existence of a thing or an object. In contrast, for Plato, concept exists independent of the external factors but dependent on the internal properties of a thing or an object. These theoretical perspectives offer insight into making rules. If concepts are formed under Wittgenstein's model (i.e., independent of their existence), the transmutation of normative standards into positive standards becomes tougher. If concepts are formed under the Platonic model, expounding the properties of the issue independent of the external factors and eschewing normative standards, then that would help to adopt positivism in the form of 'welfare-grundnorm,' which is explained below. But before coming to the methodology of welfare-grundnorm, let us look at the integrated approach to law.
SECTION II: AN INTEGRATED APPROACH TO LAW
2.1 AN INTEGRATED APPROACH TO LAW
To address the gaps persisted by the mainstream positivism in the explanation of the nature of law; this part explains an integrated approach to law. The IAL proposed by this paper explicates the nature of law as built upon the inseparable association of three fundamental conceptual features of law: legitimacy, enforceability, and validity. The aim of this paper is not to tender any suggestion to discard positivism, but to further explore and strengthen legal positivism. Thus, this paper aims to defend positivism in the form of an IAL.
The IAL upholds the fact that all three segments--making, application, and interpretation--are important to identify and explain the nature of law. In other words, any explanation of the nature of law simply from the perspective of one of these segments is unequivocally inadequate. The mainstream positivistic explanation of the nature of law mainly from the vantage point of existence is, thus, visibly inadequate. A comprehensive explanation of the nature of law should consist in each of these segments being coherently associated with the fundamental features of law (LEVs). Any act of denunciation or dismissal of the LEVs or one of them in conjunction with the operationalization of each of these segments can offer only an incomplete account of law.
The IAL is distinct from the mainstream positivism in two fundamental themes. First, the IAL explains the nature of law not from a disintegrated perspective but from the integration of legitimacy, authority (enforceability), and validity in each of the segments of making, application, and interpretation of law. Second, the IAL comprehends the institutionalization of the positivity of law through the accomplishment of the methodology of welfare-grundnorm, which is the core instrument in distinguishing law from normative standards.
Generally, Comte offers three features of positivism: (112) predictability, verifiability, and certainty (PVC). In fact, these PVC features of positivity can also be found in normative standards as well. For example, a moral standard of a community is as predictable, verifiable, and certain as any other standards that Comte considers positive. Thus the PVC features alone are not adequate to separate law from normative standards. Therefore, the issue of transmutation of normative standards into positive standard is important, which is discussed in part three of this paper. In this part, we primarily discuss an integrated approach to the explanation of the nature of law. For this reason, in the following sub-headings we consecutively discuss legitimacy, authority, and validity to elucidate the IAL.
The concept of legitimacy is one of the fundamental issues in political science, law, international relations, and broadly in other social sciences. Despite this fact, there is no uniform conceptual understanding of legitimacy. Moreover, legitimacy is widely (mis)understood as a normative standard of justification, or social acceptance of a standard, which in fact poses tremendous challenges to a legal system in developing a positive concept of legitimacy. Julia Black apparently argues that, "Where regulatory regimes are largely non-legal ... infusing them with law is problematic, using only a legal concept of legitimacy will lead us to a dead-end: such regimes will necessarily lack legitimacy and any potential for legitimacy, in legal terms." (113) Stillman contends, "... government is legitimate when it protects and enhances the values and norms of its citizens, when it preserves and expands their culture, and when it behaves itself in foreign affairs." (114) Nagel writes that, "... the task of discovering the conditions of legitimacy is traditionally conceived as that of finding a way to justify a political system to everyone who is required to live under it." (115)
In fact, from Aristotle, (116) Kant, (117) Locke, (118) Rawls, (119) Rousseau, (120) and Weber (121) to Beetham, (122) in its most generic sense, legitimacy is explained as a standard that instructs how the government should govern its people. In this regard, consent of the people is commonly attributed as the core factor of legitimacy. Nevertheless, the riddle is largely unsolved because legitimacy has constantly been explained as a normative standard. The mainstream positivism has also not been able to solve this riddle. The IAL, thus, offers legitimacy as a positive standard that conveys the relationship between a state and its people and international relations within the premise of the rule of law.
The IAL construes law coming into existence through a legitimate process of lawmaking, i.e., legitimacy. The legitimate process involves not a single action like command, or authority, or the rule of recognition, or the consent of people but a series of progressions by maintaining the hierarchy of law and passing through the formally prescribed processes. The authority to make law is invariably subjected to these two conditions: the hierarchy of law (123) and following the formally prescribed processes. Thus, under the rule of law system, authority alone cannot posit or manufacture law.
For the mainstream positivists, however, law exists because of the exercise of authority, which might be expressed either in the form of practical reason for Raz, internal point of view for Hart, or command for Austin. Unlike to the mainstream positivism, IAL argues that law exists not because of the exercise of authority alone but because of the operationalization of the two features of legitimacy not only in the making of law but also in the application and interpretation of law. Both the law applying and interpreting authorities (institutions) are required to follow the prescribed process and hierarchy of law in enforcing and interpreting law.
These two features of legitimacy are undoubtedly important but need to be complemented by democratic legitimacy. It is because these two features might be vaguely present even in a rule by law system. What is not present in a rule by law system and only extant in the rule of law system is democratic legitimacy. For example, both the law making and law-implementing institutions (namely, the parliament and the executive body) are composed of the elected representatives of the people. However, one fact that should not be overlooked is that there will be only a marginal difference between elected representatives of the people and dictators when the elected representatives undermine the hierarchy of law and the prescribed process in exercising their authority. Thus, the IAL presumes the need for democratic legitimacy to be constituted within the framework of the two features of legitimacy.
The mainstream positivism, however, almost ignores the independent existence of legitimacy. Like Kelsen, (124) Hart also treated legitimacy as an ancillary component of validity, whereas Raz treats authority as a fact that encompasses both legitimacy and validity. (125) Coleman states that Hart in fact pointed to features of law, which are independent of its legitimacy. (126) Despite this fact, one important, though partial contribution of Hart in regard to legitimacy comes from his distinction between a command of a gunman and a command of law. Hart resorts to legitimacy to distinguish these two types of commands. The gunman's command lacks legitimacy, whereas the command of law retains legitimacy.
But Hart's features of legitimacy: 'persistency and continuity' (127) are inadequate to offer a systematic concept of legitimacy. Only the existence of 'persistency and continuity' cannot establish legitimacy and are inadequate to distinguish between the command of a gunman and the command of law as well. As mentioned above, the two basic features of legitimacy: maintenance of the hierarchy of law and observation of the prescribed processes not only distinguish between the command of a gunman and the command of law but also offer a clear concept of legitimacy. The reason is robust, in absence of these two basic features; like the command of a gunman no acts of authorities could retain legality.
For the mainstream positivism, the features of legitimacy offered by the IAL might be the problematic propositions. It is because the mainstream positivism reduces the compliance to the hierarchy of law and to the observance of the prescribed processes either into the 'internal point of view' (128) or to the exercise of authority, which is peremptory in status (129) and thus a reason in itself, (130) which resonates the Hobbesian assertion that "It is not wisdom, but authority that makes a law ... [N]one can make a law but he that hath the legislative power." (131) In particular, when the hierarchy of law comes into play, the mainstream positivists often contest the supremacy of the constitution.
For example, Austin claims constitution as a 'positive morality merely' (132) and contends that the elected representatives are bound only by 'moral sanctions' (133) but not by the hierarchy of law and the prescribed processes. For Hart also constitutional issues simply involve moral arguments. (134) While criticizing and reformulating Austin's theory of law, Hart insists that there are no legal limits on the legislative power of a sovereign. (135) Hart further claims that, "... a constitution which effectively restricts the legislative powers of the supreme legislature in the system does not do so by imposing duties on the legislature not to attempt to legislate in certain ways; instead it provides that any such purported legislation shall be void. It imposes not legal duties but legal disabilities." (136) At this point one can easily discern conceptual disagreements between Hart, Kelsen, and Hohfeld. (137)
All laws whether they are statutes, rules, regulations, or contracts obtain legitimacy only by complying with the hierarchy of law and the prescribed processes. It will be easier to secure legitimacy in the making of laws if a constitution exists, since all laws derive their legitimacy emanating from the constitution. But one may critically ask how a constitution itself derives its legitimacy. This question strikes the crux of the problem of legitimacy. Failure to address this issue has often steered jurists to depict a constitution as a positive morality.
In the most lucid form of explanation, like the legitimacy of international law emanating from the consent of states, the legitimacy of a constitution springs from the consent of its people, which is actualized through the wisdom of their representatives. If the consent of the people is undivided or uniform, the constitution making follows a smooth process. The possibility of undivided consent cannot be denied when political ideologies abide by the idea of the rule of law buttressed by constitutionalism. In the final analysis, constitutionalism settles the structure of a constitution, which in turn prescribes the process of legislation.
In short, the legitimacy of a constitution emanates from the democratic process of representation that institutionally identifies, recognizes, and establishes public ownership to basic principles called constitutionalism, which in turn guide the whole constitution making process as the positive standards (basic rules of a legal system) of a constitution. Herein, a clear distinction seems between a rule by law legal system and the rule of law legal system. A rule by law legal system might also have a constitution but devoid of the check and balances of power reflected through legitimacy and positivity. The rule of law legal system obtains a constitution through a legitimate process by upholding constitutionalism not as moral principles amenable to political ideologies but as positive standards that formally regulate and ensure check and balances of state organs, political parties, and other stakeholders.
This proposition of legitimacy cannot remain ignorant of the criticisms by Jurgen Habermas, (138) who argues that in the name of legitimacy, the master class legitimizes power through the contents of law and builds legitimate claims of obedience from the ruled. This form of privileged appropriation produces inequity, though legitimately. consequently, this so-called legitimacy produces an asymmetrical distribution of legitimate chances. Habermas further argues that factually legitimacy does not rest solely on the consent of the affected but on fear, submission, indirect sanctions, powerlessness, miscommunication, and the lack of alternatives open to the affected persons. Loyalty may also be simulated hypocritically.
The question is: can our proposition of legitimacy remedy these problems as pointed out by Habermas? The answer is 'yes'. First, legitimacy creates a limited government. A limited government (all organs of state) cannot undermine the constitutionalism (both domestic and global constitutionalism) and the supremacy of constitution in manufacturing laws. Second, as a result of a limited government, the state is always required to comply with the hierarchy of law and the prescribed processes. If the government undermines the compliance requirements, a counter-hegemonic role produced within the state apparatus in the form of judicial review will test the validity of government acts (both legislative and administrative). Third, most importantly while transmuting normative standards into positive standards or positing rules (discussed in part 3 below), the state is invariably conditioned by constitutionalism. These three apparatuses ensure a condition of the rule of law, which is not free of imperfections but incomparably superb compared to a rule by law condition.
The premise on which we have discussed legitimacy suggests the idea that when the production of law and the exercising of authority follow the prescribed process in compliance with the hierarchy of law, the outcome turns out to be legitimate. In common parlance, the concept of legitimacy is not confined only to law but should also retained in a specific sense to provide a positive justification of an act, power, authority, command, decision, government, international society, international regime, and so on (collectively named as authority or the authority to act). Essentially, the idea of 'justification' stays at the core of the legitimacy discourse, which can be normative or positive. One of the distinctive marks of positive standard is that it fulfills the two features of legitimacy: the hierarchy of law and the prescribed process. The consequence of the positive justification is that rules and the exercise of authority are not dictated by the normative choices. To put it simply, law legitimizes authority and legitimacy grants the legality of authority.
The issue of legitimacy is not simply restricted to the state and government alone. It is equally vital for the justification of every act or decision of an individual, a group, or an institution. Normative acts and decisions also play an important role in society, but their legality survives only if the normative acts or decisions comply with law. Beyond the legal premise, no normative acts and decisions can derive legitimacy. In short, for all acts and decisions (authority), whether they are done at the individual level or the institutional level, legitimacy invariably emanates alone from the hierarchy of law and the prescribed processes. However, revolutions and the act of manufacturing law through revolution present some poignant questions to this conclusion.
A revolution may undermine and violate the existing laws or legitimacy of the existing system. The toughest question is how a revolution derives its legitimacy. Or, could a revolution be legitimized? If the revolution is peaceful and within the premise of domestic or international laws, the systemic changes brought about may furnish continuity to the existing legitimacy. When revolutions are not peaceful or hit with armed violence, two possible scenarios might occur. First, if unsuccessful or contained by the existing regime, the revolution happens to be designated as unlawful and perhaps the revolutionaries would be punished under the existing criminal law. Second, if it is successful, it may change the system of legitimacy, i.e., the legal order including other systemic aspects in the society. On its success, the revolution legitimizes its authority with the formulation of a new constitution and other laws. The point is that law is at the core of the foundation of legitimacy of every single authority, including a revolution.
A successful revolution can change the structure of legitimacy at the domestic level. But it cannot change the structure of legitimacy at the international level. It cannot ignore international laws and obligations arising from international legitimacy. For example, the violation of international human rights laws, humanitarian laws, international criminal laws, and other international obligations during the revolution cannot be simply ignored or fixed with impunity to violators. Both parties of conflict who violate international laws will be responsible under international law, whether the revolution is successful or not. This means, even a successful revolution cannot completely deny and ignore the existing system of legitimacy. In this context, we can conclude with the observation of Hans Kelsen that, "Usually, the new men whom a revolution brings to power annul only the constitution and certain laws of paramount political significance, putting other norms in their place. A greater part of the old legal order remains valid also within the frame." (139) The important proposition here is that having legality does not necessarily mean holding validity too, because it is a relationship between power, authority, and right, which is discussed below under the sub-heading of authority.
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|Title Annotation:||p. 117-155|
|Publication:||The Journal Jurisprudence|
|Date:||Jun 1, 2014|
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