Food for Thought: Positing Law

This week’s topic is:

September 28: Law Sui Generis – Positing Law

What is law? The natural law theorists saw (and see) this question as inextricably linked to questions of justice and morality. The legal positivists, by contrast, consciously separate the ‘ought’ of law from the ‘is’. This tradition regards law as an observable and measurable phenomenon – composed of rules, doctrines, and decisions – separate from subjective considerations of morality and value. We will study key theories of legal positivism. Our primary case study will be the 1957 debate between H.L.A. Hart and Lon Fuller on the statutes of Nazi Germany.

Food for Thought:

Pavlich poses an important question in this chapter: What ultimately is the difference between the laws of a tyrant and those of a democratic ruler? Are the laws of a tyrant less legitimate than those of a democratic ruler, and if so, why?

Musing posts for this week should engage with these questions. The theme of ‘law’s legitimacy’ is central to many historical and contemporary debates in socio-legal studies. I look forward to reading your posts on this issue!

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