Aristotle wrote his philosophy of law to avoid the catastrophes described in his Athenian constitution. Aristotle accepts the necessity of the political dimension of law because laws cannot prevail. Nevertheless, Athenian legal history proves that the political dimension is not sufficient to sustain a society or achieve its happiness. Bentham`s theory of law has two peculiarities. The first is Bentham`s exclusion of the historical dimension of law. Bentham`s “imperative” theory of law defines law as (1) the collection of signs of a sovereign`s will, (2) the control of the behavior of those under his power, (3) accompanied by an “expectation” of those people that (4) motivates obedience. The will of the sovereign establishes its own standard of validity. Custom is excluded and the ruler exercises autonomy over the law. (Bentham, 1970, p.
1). Plato described Socrates as the bravest, wisest and most sincere man of his time. Plato planned a career in politics, but retired “in disgust” after seeing the Athenian courts “corrupt written laws and customs.” (Plato, Epistle VII, 325a-c). Plato reacted to Socrates` death by rejecting the Sophists, reviving the moral and historical dimensions of law, and formulating a norm of natural law of legal validity based on the principles of universal justice. Solon`s constitution created an archetypal positivist legal system in Athens in 594 BC. Solon imposed political and judicial authority in the heliastic courts. The courts applied vague laws with no standard of validity other than the full will of the jury. Introduction by Pericles of payments for jurors in 451 BC.
J.-C. enthroned the poorest and least educated class of Athens as dicastes in heliastic courts. The Athenian courts became infamous for their injustice and credulity. Xenophon writes that Athenian courts often acted out of emotion to kill innocent men and acquit criminals. (Xenophon 1990, pp.41-42). Eighty dicas, who declared Socrates innocent, voted for his death. The third doctrine Hart opposes is Austin`s theory of the right of command. Hart rejects Austin`s theory for four reasons. First, Austin doesn`t realize that laws generally apply to those who enact them. Second, Austin ignores laws that grant public power, such as the power to legislate or decide, or laws that grant private powers to create or modify legal relationships.
Third, Austin ignores laws that do not come from a ruler but from a general custom. Fourth, Austin ignores the continuity of legislative power characteristic of a modern legal system. (Hart, 1994, p. 70). These challengers undermined Blackstone`s validity standards, but they did not replace them. A schism of validity divides American jurisprudence. There was no universally accepted standard of validity in American law. Academic theorists and legal educators favored Hart for his analytical clarity. Liberal justices favored Hart for expanding their power to enact new laws.
Conservative practitioners and judges favored Blackstone because of its emphasis on the consent of the governed, autonomy of the law, predictability of the law, and morally just decisions. John Austin`s The Province of Jurisprudence Determined defines the political dimension of law as the only source of law and validity. Like Bentham`s “imperative” theory, Austin`s “command theory” of law establishes the will of the political leader as its own standard of legal validity. The sovereign may enforce his will by law without being limited by moral principles, customs or the autonomy of the law. The noun validity means authentic or genuine, but it also has a legal meaning: legal force. His family asked the judge to determine the validity of your grandfather`s will because they weren`t sure he would be allowed to leave all his material possessions to the “little green man of Mars.” Related words are the adjective “valid” and its antonym “invalid” as well as the verb “validate”. Some common synonyms for valid are persuasive, persuasive, well-founded, and meaningful. Although all of these words mean “to have such a force that forces serious attention and generally acceptance,” validly implies being supported by objective truth or generally accepted authority. The moral dimension of law dominates Cicero`s jurisprudence.
Cicero defines natural law as the perfect reason for commanding and forbidding. These principles are the only source of justice and represent the only measure of legal validity. « The true law is the right reason in accordance with nature. » (Cicero, De re Publica, 3.33). There are three types of secondary rules. The first type is the rule of change. This rule allows Parliament to make changes to primary rules if they are imperfect or inadequate. The second type is the rule of jurisprudence. This rule allows the courts to settle disputes concerning the interpretation and application of the primary rules. The third type of secondary rule is the recognition rule. The recognition rule provides for “a rule for the final determination of primary mandatory rules”.
It also provides Hart`s criterion of legal validity. A rule of law is legally valid if it satisfies the requirements of the rule of recognition.