Jurisprudence theory

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Christian Hidalgo                06205165

In Tamanaha’s chapter “The Contemporary Relevance of Legal Positivism”, the author addresses the relevance of current legal positivism by considering the changes and criticisms that it has undergone. He intends to reinforce the importance of positivism by reconsidering the relationship between law and morality. He goes a step further to highlight that perhaps, “natural lawyers ought to become allies of legal positivists in scrutinizing all natural law or natural law-sounding claims made by legal systems”.

Despite the obvious that Tamanaha classifies as being part of the legal positivist approach, his present view of the legal positivist theory, sharply raises doubt as to what extent he can be said and is willing to be considered as one. He acknowledges, “something is amiss with the theory”, that it is suffering from a malaise. As to the origin of this, he recognises the separation thesis, Hart’s unchanged concept and the inner division within the positivists as growing awareness outlines, that law is closely linked to morality. How then, can Tamanaha consider himself a legal positivist if he is questioning and ultimately doubting the ultimate theory of legal positivism?

In an attempt to bring back to life legal positivism, he diverts from the negative image, described as “almost entirely pointless”, to illustrate its contemporary benefits. His endeavour to achieve this aspiration has a knock on effect as natural law is ultimately pointed to as the most acceptable theory.

Throughout the essay, contradictions arise as to the effectiveness of legal positivism throwing into sharp relief the poor and weak notion that Tamanaha is unable to argue in favour of legal positivism. Unlike most positivists, he does not concur with what most legal positivists see as their principal task that is about legal philosophy and considering moral value a secondary factor. This reflects his tendency to reflect naturalist criteria.

The separation thesis primarily looks at “what law is and what law ought to be”. Legal positivism initially developed around the core idea that “law can be bad” undermining the naturalist theory of Lex iniusta non est lex. Radbruch refers to this:

Where there is not even an attempt at justice, where equality, the core of justice, is deliberately betrayed in the issuance of positive law, then the statute is not merely “flawed law”, it lacks completely the very nature of law.

Positivists argue that an entire legal system, which is immoral in content or effect, can nonetheless be valid law. Conversely, if fascist and communist states responsible for history’s worst atrocities appeared to have functioning legal systems, did it make sense to call that law? Morality after all does seem central to law.

The author counterclaims by referring to John Austin who responded to the position of the naturalists by saying that it is nonsense to say that human laws, which conflict with Divine law are not binding. As a devotee of soft positivism, Tamanaha draws a comparison between naturalists and positivists. This belief symbolises a diversion from the origins of strict positivism and consequently infers a challenge.  The inspiration of soft positivism enables to move towards a broad abstract thought. This allows the incorporation of the idea that “a moral obligation to abide by the law rests in morality, not with law alone”. Consequently, it prevents positivism to loose significance yet places it closer to naturalism.

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Positivists argue that immoral law has to be obeyed as long as it is “not too egregious”. If we relate this to the earlier situation of the communist and fascist system, would it not give the impression that their law was too egregious? Tamanaha counterclaims arguing that judges ruling during the Nazi era were not complying with statutory law, instead they departed from it and could consequently not blame upon legal positivism. To support this possibility, he refers to Martin Luther King’s citation that law can be “just on its face and unjust in its application”. He then ...

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