 WHAT IS JUSNATURALISM?

smth beyond, the idea of fairness

o Jusnaturalism – is the idea that there is an immutable natural law beyond conventional and
changing positive law.
o Natural law is a set of universal moral principles that are binding on all people, regardless of
the laws of their particular society.
o Max Weber “Natural laws are norms which are legitimate not by virtue of their enactment
by a legitimate legislator but by virtue of their immanent qualities”
o The law must be fair  foundation of the law. Comes from an ancient Greece.

 WHAT IS POSITIVISM? In law

o Positivism is the idea that there is no law, in the literal sense, outside positive law (written)
o Founded on the idea of the sovereignty of the State. There is no necessary connection
between law and morality, and an unjust law is still a law.
Ex. White cars in Kazakhstan  made by the state.
o Developed in the 19th century and it is dominant today.

 HANS KELSEN. Kelsen’s pyramide

Austrian Jewish scholar, the author of the 1920 Austrian Constitution
KELSEN’S THEORY OF LAW
o He focused on positive law, separation between reason and emotion, for him law is not
about morality
o The coercive order of human behavior and a technique of social organization. Morality
and religion have the same objective (order of human behavior) but they do not have
physical coercion (social contract)
o If the law is effective or not, this discussion in outside of the law’s sphere of influence.
The effectiveness of a law is a sociological and descriptive issue, not jurisprudential.
o Justice is a moral and political question that should not be answered by the law

 WHAT VALIDATES THE LAW?

The foundation of Kelsen’s theory is the norm.
o A norm will be valid if it is enacted in accordance with another norm traced back to the
basic grundnorm (basic norm)
o The grundnorm is the ultimate norm, order or rule that confers validity upon all other
norms in a legal system. The grundnorm is not the same in every legal order, but it’ll
always be there.
o The grundnorm is not the const, but the pre-supposition that the constitution must be
obeyed.
o Ex.: Grundnorm in France “liberte, egalite, fraternite”, in UK “magna carta”
 Grundnorm is foundational values of the constitution

 HERBERT L. A. HART. The concept of Law.

English legal philosopher
Rule of recognition is an assemblage of standards that obligate and empower officials to engage
in authoritative acts of law.
 Along with evolution of society, people will come up with methods that resolves conflict
& eventually becomes law.
  So rule of recognition can be resolved without conflict but by other peaceful methods.
Law becomes law when we give them power.
What is the basic form of the rule of recognition?  a test of what the law is in particular
legal system.
Ex.: Jaywalking is prohibited in NYC but everyone does it.
THE CONCEPT OF MORALITY
Every viable scheme of governance must encompass these basic laws which have the substance
of key moral precepts. This area of inevitable convergence between law and morality is what
hard calls
 RONALD DWORKIN
o American legal scholar
o Dworkin goes against strict positivism defending that principles are essential for legal
argumentation.
o Principles for Dworkin are a set of standards other than rules. A standard that is to be
observed, not because it will advance or secure a situation.
o What is the difference between principles and rules? They differ in direction they give.
DWORKIN’S THE MODEL OF RULES
o Policies – a standard that sets out a goal to be reached, generally an improvement in
some economic, pol. or social feature of the community.

Veta cards are the principles that you cannot overrule