- Tytuł:
- Aktualność filozofii prawa Herberta Harta jako krytyki pierwotnego pozytywizmu prawnego oraz jej otwartość na koncepcję racjonalności praktycznej
- Autorzy:
-
Leleno-Czarnak, Mariusz
Szyszkowska, Maria
Moń, Ryszard - Powiązania:
- https://bibliotekanauki.pl/books/2083693.pdf
- Data publikacji:
- 2021
- Wydawca:
- Wydawnictwo Liberi Libri
- Opis:
- Topicality of Herbert Hart’s philosophy of law as a critique of primary legal positivism and its openness to the concept of practical rationality Herbert Hart is the most prominent representative of so-called sophisticated legal positivism. He has made a critique of the primary legal positivism created by John Austin. His distinction between primary and secondary rules is a milestone for contemporary legal theory. It should be also noted that, in a reply on Dworkin’s accusations, he agreed that the legal system also consists the principles of law. However, his theory requires additions of the concepts of practical rationality which form the basis of the so-called New Natural Law Theory. Herbert Hart’s philosophical achievements should be divided into three parts. The first is about what law is not, the second is about what law is, the third is about what a law should be. It is impossible to overestimate the considerations included in the first part. First of all, Hart has undeniably demonstrated the falsehood of the primary (hard) legal positivism. He did it by analyzing the functioning of the applicable legal norms. His conclusions were therefore based on empirical research. The law is not an order made by sovereign, secured by coercion, and its analysis is not possible only by means of logical conclusions that do not add external content to the result of reasoning. Hart refers to the achievements of the philosophy of language. In particular, there is an interaction of legal concepts with reality and vice versa. Therefore, the dictionary of legal concepts cannot constitute a closed, separate and independent system. Criticism of the assumptions of primitive legal positivism led Hart to make assertions about what law is. First of all, he claims that the law can be fully known only in relation to the whole of social life. Openness and context take on fundamental importance for Hart. Law ceases to be an artificial creation of an abstract sovereign and becomes an element of social life. First of all, it is open to criticism from moral, customary and other positions. Its content is also co-created by the context in which it is applied. It is interesting that Hart’s theses in the scope presented above are also true in the Polish legal system. In particular, it is necessary to point out the essence of legal language, which is not a metalanguage but a register of an ethnic language. The meanings of the names contained therein often depend on the context of their use. In Poland, legal definitions are more important, but they do not constitute the entire legal system, which in its assumptions remains open thanks to underspecified expressions and general clauses, as well as references to legal principles, and sometimes to values. Also noteworthy is the possibility for the court to apply various methods of interpretation and the theoretical possibility of departing from the linguistic interpretation, when its effect would be contrary to generally accepted ethical norms. Hart’s philosophy allows for such a judicial activity, which may be considered the most significant legacy of his achievements, because it was formulated from the perspective of legal positivism, therefore the part of philosophy of law, which was responsible for the attempt to remove axiology from the method of jurisprudence. On the basis of undoubtedly correct observations, Hart created an extensive theory of law. However, this project did not end with full success. First of all, there are doubts about Hart’s understanding of the moral norm and the features he points out to distinguish it from the legal norm. His theory is extremely important for the philosophy of law. First of all, it is a positivist theory that distances itself from the theses of its predecessor in a way that does not allow the mind applying the principles of logic to return to the assumptions of original legal positivism. Hart’s theory of law should be treated not as one that would allow for a precise definition of the law, but as a theory indicating its characteristic features, without prejudging whether they are complete. Such a view is consistent with Hart’s (and his scientific community) understanding of the essence of defining. The third part of Hart’s academic achievements is his concept of the minimum content of the law of nature, which gives rise to general guidelines to the content of the law. In his opinion, this concept is built on the observation based on the fact that people strive for survival, and therefore the law must ensure the possibility of implementing these aspirations. However, it is not possible to build a theory of the law of nature without adopting a series of philosophical assumptions. First of all, the assertion that there is human nature is itself a metaphysical thesis. The thesis that people should pursue the known goal of their nature is an axiological and epistemological thesis. This does not mean that these theses are wrong. But they undoubtedly exceeded the empirical method. Therefore Hart’s assertion that his theory derives solely from observation is incorrect. Moreover, there is an assumption in his claims which he does not discuss. Namely, by indicating what law should be based on observation, Hart connects the sphere of being and ought, which, for example, from the point of view of Kantism, is a mistake. Moreover, it seems that it is not “survival” that constitutes man’s basic aspiration, but the will to create a culture. Survival is secondary to this. If we can talk about something that distinguishes a person in the sphere of experience, it is the processing of the existing environment, the effect of which is a survival (though not always). Apart from the issue of what the basic human aspiration is, it is worth saying that the word “survival” is an ambiguous statement. Even accepting the fact that it is and should be a human goal, one should consider what actions will ensure its implementation. In other words, how to construct a legal system conducive to human survival. Hart does not answer that question. First of all, we do not find in his philosophy an answer to the question of whether, for survival, it is only necessary to ensure the realization of lower values (ensuring prosperity - utility ones), or it is necessary to refer to higher values (ideals). This is an extremely important problem because it seems that the realization of only lower (utility) values leads not to survival, but to the destruction of society. If we find that survival requires reference to higher values, the explanatory power of Hart’s philosophy drops to zero. It would then only shift the problem. Instead of asking about the axiology of law, one would have to ask about the axiology of survival. It should be pointed out that the thesis that the implementation of only lower (utility) values leads to destruction is more probable than the thesis that the implementation of these values ensures survival. If so, then the concept of the minimal content of a law of nature gives only an apparent answer. The results of the well-known Calhoun experiment on rats provide a significant indication in this regard. From the point of view of this publication, it is important that Calhoun subjected the population of rats to the experiment, providing them with the best possible conditions, in particular, unlimited food and medical care. Importantly, the rats did not populate the entire territory intended for them, so the limiting condition was not the lack of space (they voluntarily gathered in crowded selected nests - however, this is not important from the point of view of this text). At first, the rat population grew rapidly. Then population growth began to decline. Despite the availability of all resources, the population completely lost its reproductive capacity, which led to extinction. Recent mice have lost interest in procreation and got rid of aggressive behavior. The subjects were only interested in themselves. They were beautiful and healthy, but unable to take on challenges. Despite their excellent health, they did not reproduce. Interestingly, in earlier generations (when the population was still capable of reproducing), the loss of aggression and the need for domination in males was observed, and aggressive behavior was taken over by females and expressed in a pathological way (for example, towards young ones). Homosexual behavior was also common (their role increased significantly). The results of the experiment were variously interpreted. There is no doubt, however, that the lack of challenges led to the extermination of the population. The provision of unlimited resources caused the extinction before the rats could settle their entire habitat. These arguments are not conclusive, but they justify the thesis that in order to survive, a person must be able to take up challenges – in the sense of achieving goals other than meeting biological needs. It seems, that the thesis that for human survival it is necessary to refer to higher values is probable. If so, Hart’s concept is absolutely insufficient. It shifts the question about higher values to the sphere of survival. Such an explanation not solve the problem, but it blurs it. The above thesis does not change the fact that at the description level, Hart’s philosophy is a significant work. Hart made the final conclusions that could be drawn using the empirical method. First of all, he showed the flaws in the original legal positivism. However, an analysis of his positive philosophy shows that the method based on description is insufficient for considering legal phenomena. When answering the question about the topicality of Herbert Hart’s philosophy of law, it should be said that it can be discussed at three levels of analysis. The first level is the description level. Hart accurately and reliably analyzes the current legal phenomena. His concept is also consistent with the legal system in Poland. It is worth pointing out that, while remaining at the level of description, it is more legitimate to talk about the theory of law than about the philosophy of law. It must therefore be said that Hart’s theory of law has remained relevant. The second level of analysis are the conclusions of his theory. It indicates that the present theory implies the necessity to take into account the minimum content of the law of nature in the legal system (it is worth recalling that this system is characterized by openness, which does not correspond to the concept of a system developed by classical logic). The necessity to take into account the law of nature by the state authorities is difficult to deny. It is a universal and timeless postulate. The third level of analysis is the perspective of the development of the philosophy of law. This perspective can be called a meta-analysis. Namely, in the contemporary philosophy of law, the boundary between legal positivism and legal-natural concepts is becoming blurred. On the one hand, legal positivism leads to the conclusion that a minimum of natural law is necessary, and on the other hand, the thesis about the invariability of its content is no longer necessarily related to the concept of natural law (an example is Radbruch’s philosophy). Therefore, the assertion of a specific synthesis in the field of the philosophy of law seems to be justified. Proposed interpretation of Hart’s philosophy assumes that it includes the moral aspect of justifying the system of positive law (the minimum content of the law of nature), which is traditionally ascribed to the concepts of the law of nature and defined as the thesis about the necessary dependence of positive law on its ethical status. These links make it necessary to base the theory of law on the concept of practical rationality. In this sense, it can be said that the need to supplement legal positivism with the concepts of practical rationality is a conclusion from the analysis of Hart’s philosophy. He did not articulate such a need. Undoubtedly, however, he was open to the arguments traditionally assigned to theories of the law of nature, as evidenced not only by his concept of the minimum content of the law of nature, but also by collaboration with John Finnis. It should be emphasized that Herbert Hart’s philosophy of law undoubtedly needs to be supplemented. The main reasons for this are: 1. lack of indication and explanation of the adopted philosophical assumptions, 2. difficulties in defining the relationship between the legal and moral norm, 3. the apparent nature of “survival” as the minimum content of the law of nature, 4. lack of sufficient justification for the obligation to comply with legal norms. It should be emphasized that the essence of the dispute between representatives of natural law concepts and legal positivism concerns not so much the answer to the question about the existence of a law of nature, but whether the law of nature is the subject of interest of jurisprudence. The dispute concerns the question whether juris- prudence can dispense with the concept of practical rationality. It seems that Hart did not directly negate the view according to which jurisprudence and the concept of practical rationality are separated. However, he did not deny the possibility of such a combination, as evidenced by the fact that he encouraged John Finnis to write a book on practical rationality. There are two obvious arguments in favor of the necessity to apply the method of jurisprudence to the concept of practical rationality. First, since positive law is a human product, understanding it requires a general theory explaining human actions, and therefore at least some practical philosophy. Second, since the law regulates human actions in a rational way, these actions should be treated as an object of practical rationality. The literature emphasizes that there can be no legal or moral normativity without taking into account the conditions necessary for agency. It is indicated that a complete theory of law should answer not only the question of what statutory law is but also explain the obligation to be subject to its orders. At the same time, “an attempt to explain normativity by prior exclusion of all references to practical reason is a doomed undertaking,” which rules out Kelsen’s normativism as a sensible attempt to justify the obligation to obey the law. The philosophy of Herbert Hart’s law can be treated as one that opens up the prospect of considering the concept of the basic principles of practical rationality, and thus the combination of ethics and jurisprudence. This is supported by both the analysis of Hart’s published views and his attitude towards the creator of the so-called new theory of natural law. Hart’s philosophy as the most fully reflecting the aspirations of the 20th century legal positivism, at the same time indicates the limitations of this way of perceiving legal phenomena. The most important of them is the lack of sufficient justification for compliance with the norm of statutory law. It seems that this task is fulfilled by the concept of practical rationality, recalled in an original way by the representatives of the New Theory of Natural Law. Herbert Hart’s legal positivism allows only a selective explanation of the system of positive law. Without a deeper philosophical analysis, it is impossible to explain the causes or justification of the application of secondary rules. The concept of “the minimum content of a law of nature” cannot be meaningfully explained without an in-depth philosophical analysis that legal positivists avoid. Moreover, reducing it to “survival” does not seem to be in line with the observed reality. It should also be noted that the development of the philosophy of law appears on the basis of the concepts described above, not as revolutionary but as evolutionary. The philosophy of Herbert Hart’s law is therefore up-to-date not only because of the arguments indicated above, but also because without it, it is impossible to understand the The New Natural Law Theory.
- Dostawca treści:
- Biblioteka Nauki
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