Norman P. Barry's An Introduction to Modern Political Theory PDF

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Example text

In this chapter we have to consider in some detail that special form of social control which we understand as legal control. Undoubtedly a legal system is a specialised system of rules, distinct from moral rules, which at the very least provides a framework in which individual behaviour can in some sense be regulated and an element of certainty guaranteed, and which at the very most may provide a comprehensive framework of regulations covering nearly all aspects of the individual's life. Just how desirable it is for the law to enter a wide area of social life is something which will be considered later, but the elementary facts of human nature seem to indicate the necessity for some rules, many of which are bound to be backed by organised sanctions.

When post-war German courts, for example, were faced with cases arising out of Nazi law, the positivist solution - of passing retrospective statutes invalidating the law - was felt not to be entirely satisfactory. Also some jurists argue that aspects of South African law until quite recently resembled arbitrary dictates rather than genuine law: they were not merely bad law. A modified version of natural law, for example, the work of Lon Fuller (1969), tries to show than an acceptable account of law necessitates the use of certain basic moral concepts, about which there can be some agreement, but that this is consistent with the recognition of value differences at other levels.

This identification of science with the inductive bias was one of the unfortunate legacies of Logical Positivism. Now liberal-rationalists 5 claim that they are 'positivists' in the sense that they eliminate values from formal social science, but emphatically reject the central tenet of the positivist epistemology which claims that the purpose of social science is to discover empirical regularities in the social world (Popper, 1957, pp. 105-19). Laws are not derived inductively but are deduced from a small number of simple propositions about human nature.

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