George Pavlakos, OUR KNOWLEDGE OF THE LAW: OBJECTIVITY AND PRACTICE IN LEGAL THEORY Oxford: Hart Publishing (www.hartpub.co.uk), 2007. x + 262 pp. ISBN 9781841135038. £45. Nigel E Simmonds, LAW AS A MORAL IDEA Oxford: Oxford University Press (www.oup.co.uk), 2007. x + 209 pp. ISBN 9780199276462. £34.95.
| Author | Neil MacCormick |
| Pages | 150-153 |
| DOI | 10.3366/E136498090800022X |
| Published date | 01 January 2008 |
| Date | 01 January 2008 |
Stephen Toulmin once remarked to me that philosophy from the mid-seventeenth century was obsessed with finding new bases for certainty after the Thirty Years War and the fracturing of Christianity. Perhaps something like this happened again in the twentieth century. It also saw a thirty years war, from 1914 to 1945, and was beset with a great clash of ideologies. To be sure, it was for one reason or another a century of moral uncertainty. The more the natural sciences expanded knowledge of the material world, the less seemed to be known or knowable about the ethical world. Expressionism and emotivism came to predominate over the certainties certified by intuitionism; logical positivism banished morals and religion from the domain of verifiable knowledge, and parked them alongside poetry and literature. Of course people had moral commitments and moral convictions (possibly simply a reflex of the economic interest of their class). But if everyone has convictions of her or his own, who is to say which subjective conviction is the better? Attempts to produce objective systems of ethics could be written off as mere efforts at ideology, with a dash of false consciousness thrown in.
If morality rests on such shaky foundations, how are humans to live together? What common rules can there be for them to observe and thereby secure some common framework for collective existence? A promising answer to this question is “the law”. Each state has its own positive law, and the states co-exist in a framework, however contestable, of international law. How a person should live morally is a personal question for each of us: how we should live legally is laid down in statutes and precedents and upheld by organised public force.
The two great twentieth century classics of positivist jurisprudence, Hans Kelsen's
According to Hart, the limited objectivity of law depended not on an hypothesis but on a social convention whereby the officials of a state commonly acknowledged common criteria of validity and bindingness of rules derived from various sources such as legislation, precedent, custom and the like. In the existence of a “rule of recognition” as a matter of social fact...
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