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“According To Legal Positivism There Is No Scope For Interpretation In Judicial Decision Making And The Judge Is Strictly Rule Bound.” Discuss Critic

2692 words - 11 pages

The importance of legal positivism for legal practitioners is undoubted. The legal system, originating from two version being both English and Continental-European, has indeed undergone a process of evolution. Today, the existence of a separate legal view in society with its legal norms and a strict separation of law and morality is witnessed. An autonomous order has emerged in our modern society and law is now seen to be separate and self-sustaining with a normative function. There was no longer an external view of the legal system, as all law is man-made by the Parliament and thus a new theory was needed to understand and replace natural law. This was coherently put together as the ‘Pure Theory of Law’ by Hans Kelsen (1967), who has argued for the existence of a system of norms that binds judges. Thus, the fundamental assumption of legal positivism is that there is no room for the interpretation of law and judges are law-bound. Nevertheless, this notion of legal positivism has and is still being argued. The importance lies with the epistemological views that underpin these theories. Legal positivism therefore relies heavily on logical decisions and rationality; hence a judge’s subjective opinion, morality and interpretation has no room in legal practice. Yet, this view has been criticised on the grounds that legal positivism seems to be a theory of law and not really one of legal practice, as it often ignores what happens in courts. This is therefore a question of importance within a social theory of law that examines law from a very different dimension.
Kelsen sees norms as the main starting point within law. The argument is that a legal norm derives from itself and thus finds normality in itself. There has to be a basis in law that allows and/or enables it to operate. Kelsen is looking precisely for this basis, which he calls internal conditions that can be named and identified by using legal means (Kelsen 1967). Therefore, the legal system internally creates its own norms and facts. This closure is normative and fixtual, giving a superior account of the separation of law. Thereon, a judge’s mere job is to select the appropriate facts and practice the application of these legal facts necessarily. There is no need and no room for judicial interpretation. The selection is done from a hierarchy of norms and thus law justifies itself and provides it with the sufficient validity needed. It is precisely this closure and superiority of law that binds judges. Law either commands, permits or authorises confidently and finds normality and validity within itself. Hence Kelsen recognises a system of closure and calls this a ‘pure’ theory of law, because “it only describes the law and attempts to eliminate from the object of this description everything that is not strictly law” (Kelsen 1967, p.1). From a sociological point of view, this theory and standpoint is a very tight, up-down approach to law that states the superiority and strength of law as well...

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