PREFACE
This book aims to elucidate the positivist grounds of the normativity of a legal system by concentrating on the notion of authority of law.
Philosophers have long grappled with the problem of obligation to obey the law, either as the problem of the normativity of law or as the problem of the authority of state. The two problems have been dealt with separately, and the issue of relationship between them was until quite recently dismissed. However, considering that law is characterized by its ‘so-called’ authoritativeness, the notion of authority closely relates to the problem of the normativity of law.
The most remarkable attempts to articulate the grounds of the normativity of law are made by Hans Kelsen and H.L.A. Hart. They both regard two notions as essential to the explanation of the normativity of law: ultimate rule and systemic validity. These two notions play central role in their theories of the normativity of law.
This book shows, however, that Kelsen and Hart have failed for several reasons, and that it is impossible for them, without contradicting themselves, to invest legal norms with the property of neutral obligatoriness before resorting to the notion of authority of law.
Here, it is necessary to examine the notion of authority carefully. For ‘authority’ has traditionally been construed as the authority of person, but not of law itself. Actually, there is no consensus among theorists about the concept of authority. It has been understood either (a) as the justified power, or (b) as the right — either a liberty or a claim-right — to rule, or (c) as the normative capacity to impose duty.
Whichever notion above theorists may pick out to unpack the concept of authority, they conceive of it as positional, i.e. as an “ability” to do something. Authority is, for them, always the positional authority of a person or a body of persons involved in an authority relationship with subjects, but not of law.
However, we should conceive of the concept of authority not as positional but as dispositional, i.e. as respectable properties. For the notion of positional authority is (1) not sensitive enough to reflect a typical way to balance private interests among members of modern societies, and (2) unable to reproduce what Hart calls “the salient features of law”, since it is embedded in a simple reductivist model of a legal system. The notion of rule or its internal aspects are unlikely to feature in any models of a legal system unless and until the notion of positional authority gives way to its dispositional counterpart.
The authority of law is not construed, in this book, as constituting a test of validity of any theories of the nature (or concept) of law. The theory of authority is, thus, regarded as the ‘thin’ theory which conceives of the authority (of law) simply as necessary for the law to exist as a system. In this respect, I object to Raz’s conviction to the effect that the theory of authority provides support for the sources thesis. The critical analysis of Raz’s argument done by employing ‘the argument from falsity’ and ‘the nature thesis’ shows that he fails to give sufficient support to his argument.
The central tenet underlying this book is that the notion of authority relates directly to the analysis of the structure of legal system, and therefore has an influence on the theory of (the nature of) law but only indirectly. What constitutes a test of validity of any theories of the nature of law is not the authority (of law) but the system of rules itself. And the authority (of law) is necessary for the law to exist as a system of rules. Therefore, not only exclusive but also inclusive and anti-positivism can resort to the concept of authority (of law) in the course of playing around with rules of a legal system.
I would like to thank my dissertation advisors at Seoul National University, Hun Sup Shim, Do kyun Kim, who are both respected scholars and distinguished teachers. They have encouraged me ever since I met them and chose to study philosophy of law. Moreover, they taught me how to lead a single-hearted life. Without their care, this book would never have been born and finished. My special thank must also go to Hyeon-Cheol Kim who has been my mentor. His invaluable comments on this book really helped.
I would also like to thank the selection board of SNU law series. Byoung Jo Che, the former director of SNU Law Research Institute, and In Seop Chung, the present director, also deserve my sincere thanks for their help. I really enjoyed several seasons with them at SNU Law Research Institute. Paul Shepherd, my australian friend and colleague at SNU Graduate School of Law, read the whole manuscript of this book and corrected my poor English. I am grateful for his incredible generosity.
My deepest gratitude must go to my father and mother, who set an example of responsible parents. With all my love and respect, I dedicate this small book to them. Finally, I would like to say I love you to my wife and my pretty baby.
contents
Ⅰ. Normative Foundations of a Legal System
1. Scope and Strategy
1) Authority and Validity
2) Authority and Neutrality
2. Overview
Ⅱ. Kelsen and Hart on Normativity of Law
1. Ultimate Rule and Systemic Validity
1) Ultimate Rule of a Legal System
(1) Basic Norm
(2) Rule of Recognition
2) Systemic Validity
2. Normativity and Validity
1) Concepts of Validity
(1) Membership
(2) Efficacy
(3) Binding Force
2) Two Conceptions of the Normativity of Law
3) The Necessity for Authority
(1) The Validity Problematic
(a) Validity of Ultimate Rule
(b) Validity and Conflicts between Norms
(c) Validity and Justification of Legal System
(2) Between Validity and Authority Approaches
Ⅲ. Concepts of Authority
1. Basic Ideas of Practical Authority
1) Disagreement
(1) Authority: Practical or Theoretical
(a) Theory of Practical Authority: J. Raz
(b) Theory of Theoretical Authority: Heidi M. Hurd
(2) Political Authority as a Practical Authority
2) Three Basic Ideas
(1) Justified Power or Influence
(2) The Right to Rule
(a) Authority as a Privilege or Liberty
(b) Authority as a Claim-Right
(3) The Normative Capacity to Impose Duties
2. Two Concepts of Authority
1) Positional Authority: Ability
2) Dispositional Authority: Properties
Ⅳ. The Authority of Law
1. Authority and the Salient Features of Law
1) Continuity and Persistence of Law
(1) Positional Authority
(2) Dispositional Authority
2) The Self-binding Force of Legislation
(1) Positional Authority
(2) Dispositional Authority
2. Authority and the Nature of Law
1) Authority and the Imperative Theory of Law
2) Theory of Authority: Thin or Thick
(1) Argument from Falsity
(2) The Nature Thesis
3) Authority and Theory of Legal system
Ⅴ. Conclusion
