What is law? What a controversial and complex question! It is the raison dêtre of the philosophy of law, over many years, which is aim to understand the generals conditions which would render any putative norm legally valid. Does legal validity lie in the norm's content or in the norm's source ? That is at the heart of the dispute between natural lawyers and legal positivists.
According to the American Heritage Dictionary, the definition of the validity of law is the act of being effective or binding or having legal force. In other words, attempting to define the legal validity leads us to a circular analysis: a valid law has legal force. Does this mean that valid rules cannot be criticized or reformed? What kind of obligation is hidden behind the concept of law? Is it a moral one ? The heart of the debate is actually the comprehension of the nature of the relationship that exists between legal validity and moral validity...
[...] Because of the simple reason that law is essentially an instrument of political sovereignty, or a social fact. According to Austin's command theory, law reflects the will of the sovereign, which “obliges generally”. It is a particular command made by those who detained the coercive power. law is valid if and only if it is a desire commanded by a followed sovereign and backed up with the threat of sanction” (Philosophy of law, utm.edu). Yet, as Austin postulated an identifiable sovereign benefiting from an unlimited sovereignty, his theory fails to describe the legal systems operating in our contemporary democratic societies. [...]
[...] The combination of Hart's theory of the rule of recognition and the Dworkinian principle may be the solution of the problem of legal validity. A law is valid when it is defined as valid by a rule of recognition which cannot be simply a basic norm but a “constellation of principles” as well as rules. Those moral principles which render any putative law legally valid as well as rules enacted lied in the past legislatives (that are those “intentions of the legislator”) and in the past judicial precedents (that are the unwritten principles which guide the judicial sentences). [...]
[...] He asserted that courts, who have to deal with hard cases, refer to the “spirit of the when the letter of the law is unclear or to a “broader principle” which is underlying on unclear precedents when they take into account the Common law. In Dworkin's “rights thesis”, there is no morally neutral procedure of legal validation. Judges are obliged by the body of judicial and legislatives rules, decisions, and unwritten principles of the Common law to acknowledge and apply pre-existing individual rights, principles of justice or fairness. [...]
[...] They are the fundamental sources of legal validity. A norm is valid if it conformes with the “secondary rules”, and especially with the rule of recognition, which is the actual rule of society as the French Constitution of the fifth republic. In other words, say that a given rule is valid is to recognize it as passing all the tests provided by the rule of recognition” (Hart). * The norm's content cannot render any putative norm legally valid. Yet, Hart agreed that “laws must have a bare minimum of moral content if they are to serve their functions as laws at (Tebbit). [...]
[...] If law is a social fact, it is also the means by which individual rights are protected. What law is and what law ought to be are two aspects of the concept of law which have to be analysed. What law ought to be is a political matter, involving political conflicts, so it has to be clarified in being recognised by the rule of recognition. [...]
Lecture en ligneet sans publicité !
Contenu vérifiépar notre comité de lecture