Help to Hart
I think it was in the "Ethics in the Public Domain", that Raz answered an important question that the critics of Hart asked as to why Hart said that jurisprudence was a study of a sociological point of view. He found that there were essential rules that when examined are closely intertwined in how they work to compliment the other. One of these was survival such as what Hobbes said was a necessity of human nature. Such essential facts are what natural law theorists find truths but as Raz points out, this is not what positivism is doing in recognizing these truths as forming a basis for dictating what the law is as a concept-whether they exist or not The idea according to Raz is that this may help in identifying what is 'central and significant in the common understanding of the law and this will aid in understanding how people in society view themselves. The law according to Raz helps people judge the actions of themselves and others. Hart states that their must be certain law must exist to support the human conditions and thus Raz compliments this by saying that through a conception of law insights into human behavior will materialize. But Neither Raz nor Hart are claiming that the law necessary derives from morality or is it necessary link between morals and the law. They are not creating a higher law only describing it as a system in itself as a issue of social fact.
Raz, points out that one of the key characteristics of the law as an institution is that in general people in society follow it willfully. Explanations for this social fact has been explained through the concept of a a social contract from Hobbs to Austin's command theory. Later, Hart describes this willful compliance as part of the necessity for the force of law or for a successful legal system to work and Raz tries to put this into light in his authoritative theory. It is based on the publics ability to critically reason and more so back to issues of necessity that members of society cannot concentrate or know everything about the goings on in life and look to government authority's ability to help them make decisions about everyday life. So, the law performs a type of social function in dealing with affairs of social organization that people can appreciate but not necessarily understand or need to understand all of its intricacies of how this is achieved. The government he sees as performing a necessary function that does not put a gun to everyone head for them to support its authority over them and nor does he see the government as tyrannical for doing this but as the legal system as preventing arbitrary results from occurring in society. This focus prevents authoritarianism as long as the government promotes his perfectionist liberalism. The government is not to promote ideals but promote the autonomy of individuals providing them with the means to the good life.
The idea of conceptions playing a role in law such as Justice and fairness are discussed and distinguishable for Raz as a positivist. Dworkin in contrast supports the concept that these ideals, as political morals, do play a role in determination of the judgements and arguments in court that change or validate laws. The view that Raz purports is that the law does not necessarily reflect this as a law can be unjust or not be fair because as a closed system and hard positivist the law is a closed system. So, we have on one hand natural theorist claiming that an unjust law is not a law, Dworkins interpretive theory outlining the role concepts of government morality play and Harts soft positivism that suggests that morality may paly a role but not necessarily; we have Raz joining the likes of Kelsen as a hard positivist. It is not that the law cannot be changed to reflect a moral conception; the idea that the legal system appeals to these abstract conceptions as a foundation of law in proper judgements is what is false. So for Raz we can have a law or laws that are unjust which is perfectly in line with a proper representation of the legal system. The rule of law or virtue that the law has is to prevent arbitrariness and not conceal conceptions of justice etc that natural lawyers and Dworkin may be seen to proport. So, for Raz there is no content in law that determines what is a illegitimate law as not conforming to some morality but this simply exists outside the law or the legal system. If there is to be a change in the law then it deals with our morality or our political views. Hence judicial activism is not a good thing for Raz.
Yorumlar