LEGAL POSITIVISM'S LEGITIMATE HEIR?

AutorTschorne, Samuel I.
CargoTexto en ingles - Resena de libro

LEGAL POSITIVISM'S LEGITIMATE HEIR?

Fernando Atria, La forma del derecho, Marcial Pons, Madrid, 2016, 465 pp.

  1. Introduction

    La forma del derecho [The Form of Law] is a book of great scope and ambition that constitutes without any doubt a highly original, engaging and insightful contribution to contemporary legal theory. It leaves almost no major jurisprudential theme untouched and about all of them it has something novel and interesting to say. La forma, furthermore, aspires not only to provide a better answer to the problems that currently hold the attention of legal theorists but it purports to reorient jurisprudential debates and change the issues that animate them. Legal theory, it claims, is primarily focused on issues that are at best irrelevant, while downplaying others that are critical to the understanding of modern law. If its main conclusions are right, legal theorists should not only be concerned with different questions but change the way they go about answering them. No wonder then that Roberto Gargarella, a well-qualified observer of Latin American legal thought, has hailed La forma as "possibly the most important book published in Latin America, in the area of legal philosophy" in the last three decades (Gargarella 2016).

    There are four major threads in the argument running through the whole book. After articulating (I) a radical critique of widespread assumptions in contemporary jurisprudence about what are the key questions and the main aims of the field, the book tries to characterize (II) the kind of legal theory that would revitalize jurisprudence and make it matter again, which, it claims, (III) must be grounded upon a theory of the institutional structure of the state. Finally, it argues that for an adequate theory of law and the institutional structure of the state to make sense at all requires us, in turn, to endorse (IV) a particular conception of politics and democracy. In the following pages, I will critically reconstruct the overall arc of the argument with a view to demonstrating why one should accept most of its premises but reject many of its conclusions. In particular, I will try to show that while Atria's negative assessment of contemporary legal positivism is convincing, he does not take far enough his own views about how to revitalize this tradition.

  2. The Dead End of Legal Positivism and the Retrieval of its Raison D'Etre

    La forma starts by showing how the dominant conception in contemporary legal theory, i.e. analytical legal positivism, has lost a sense of itself after Dworkin's challenge to Hartian jurisprudence and became absorbed by the family dispute between hard (or exclusive) and soft (or inclusive) conceptions of legal positivism. Contemporary legal positivism, it argues, has become so obsessed by the separability thesis that has retreated to a primarily conceptual theory that claims that, even if in no existing legal system the law can be identified (or applied) without relying on moral criteria, there could be a legal system separate from morals--i.e. it could be thought to be so without self-contradiction. But, the argument goes, if legal positivism becomes nothing more than the thesis that there is a conceptual separation --be it necessary (hard) or contingent (soft)--between law and morals, without considering whether and how enlightening that is for understanding existing legal systems and their mode of operation, it is difficult to see why such a theory would be of interest to anyone. This problem is brought into sharp relief by the expansion of constitutional adjudication in contemporary legal systems. As the importance of judicial review of legislation--and with it the importance of morally charged concepts (i.e. "cruel and unusual punishment", "human dignity", "equality", etc.) for the identification of valid or applicable law--grows, the empirical content of a legal positivism centered on the separability thesis diminishes, becoming ever more conceptual and theoretical (Atria 2016, pp. 29-48). Some contemporary legal positivists have even come to boast of the superficiality and practical irrelevance of their jurisprudential work (pp. 66, 90-94).

    The irony of legal positivism, Atria remarks, is now plain for everyone to see. The original thrust of the insistence on the importance of distinguishing what the law is from what it ought to be was to bring legal thinking closer to practice and make theory answerable to fact. Positivism was born out of the conviction of the need to pay more heed to what really happens, i.e. not to what judges, lawyers and jurists say (or think) they do, but to what they actually do when they use the law to argue and decide particular cases. This is clearly shown by Bentham's critique of the common law and the legal profession of his time ("Judge & Co."). What horrified Bentham was not only that laws were far too numerous and obscure and that judicial procedures and rules of evidence were artificial and arbitrary, but the ease with which English lawyers held and propagated the belief that these laws and traditional legal forms were not man-made, that they were natural and based on reason as it has been applied to particular questions from times-immemorial. This mystification, that remade traditional law and legal institutions into a true natural order that evolved gradually through the English people's history, shielded them from rational critique and reform despite all their evils and abuses. Legal positivism, therefore, was born as an attempt to demystify law and legal institution by showing that they were manmade, the product of human will, something created not discovered. This was crucial because the demystification of law had the important consequence that it opened it to scrutiny, criticism and reform (Atria 2016, pp. 49-66).

    Bentham's radical critique of common law was in this sense the preface to his no less radical program of legal reform, for which he coined a new concept: codification. Once it is recognized that law is artificial, an expression of human will, it becomes clear that the evils and abuses inherent in a judge-made system of law like the common law might only be rectified by transitioning towards a statutory-based system, where the judiciary and, more generally the application of the law, was made subject to a deliberately created and rationally structured legislation (pp. 104-111, 220-221). Moreover, Atria argues, the original driving force of legal positivism was to promote and reinforce an ethos that respected the authority of legislation and to stabilize the displacement of pre-modern judge-made law by modern legislated law (pp. 66, 95-96). Legal positivism constituted a deliberate attempt to articulate and defend a distinctively modern conception of law--i.e. a primarily legislated law whose highest expression was codification--which required an accompanying, distinctively modern conception of the judicial function. Contrary to what contemporary legal positivists maintain, a truly positivist theory of law must be committed to a conception of the application of the law that bolsters up the authority of legislation, viz. to a formal conception of legal reasoning and legal interpretation. Therefore, Atria concludes, we need to rescue the tradition of legal positivism, to restate again, although in a more sophisticated way, a theory that understands that legislation constitutes the most consummate expression of modern law (pp. 29, 111-118, 168-169, 219-237).

    Although Atria's criticism against contemporary versions of legal positivism are for the most part persuasive, his reconstruction of the tradition of legal positivism is problematic. It is true that Bentham's project was primarily critical rather than descriptive. Although he insisted on the importance of distinguishing between expository jurisprudence (about what the law is) and censorial jurisprudence (about what it ought to be), Bentham's science of legislation was first and foremost a critique and a program of reform of both the common law and the English constitution. Taking the principle of utility as the measure of all legal and political arrangements, he rejected the view that local custom and the common law were embodied wisdom and challenged the aristocratic principle of government, making a large imprint on nineteenth century reformation of English legal and political institutions. (1) But when it comes to the formation of legal thought and scholarship during the nineteenth century, it was one of his disciples, not Bentham himself, who was more influential and this is decisive for a more balanced understanding of the tradition of legal positivism. In contrast to Bentham, Austin wanted to elaborate a scientific expository jurisprudence that was empiricist, in the sense that it dispensed with normative considerations, and analytical, in the sense that it aimed to expound the law by systematically classifying its elements and clarifying basic legal concepts. It was Austinian descriptivist-analytical jurisprudence--rather than Bentham's critical-reformist program--that provided Victorian academic lawyers (A.V. Dicey, P.F. Pollock, W.R. Anson, etc.) with a valuable strategy for finding both a role for legal scholarship in the eyes of the legal profession and a place for it among university subjects, thereby inaugurating the expository tradition that dominated English legal studies for over century. (2)

    Put briefly, Atria's reconstruction of the tradition of legal positivism and its influence on legal thought is highly selective and unbalanced. In fact, the frailty of his reconstruction of the historical trajectory of legal positivism is further shown by a key step taken in the narrative without much in the way of explanation from Bentham's jurisprudential project to nineteenth-century Continental European (mostly French and German) legal thought (Atria 2016, pp. 101-131, 219-229). This sort of criticism, however pedantic it...

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