Legal positivism

• Justice Keen and the tradition of legal positivism.
• Two casesL Belmarsh judgement and Kontaktsperregesetz decision.
• L.A. Hart and British legal positivism.
• Juergen Habermas and the proceduralisation of the positive law.

Justice Keen:

• Separation of law and morality: the question the court is asked to adress is a legal, not a moral question.
• Separation of powers: politics (legislature) is responsible for the (moral/immoral) content of the law. Judges are under an obligation to faithfully apply the law as it is written down.
• Literal interpretation of the law: judges should focus on the letter and the plain meaning of the law.

Legal positivism: law is created (posited) by human agents for the purpose of self-government. Law is defined by virtue of rules declared and enforced by authorities such as legislatures and courts. Human law instead of natural law. Rejection of a higher legal order constituted by morality.

No necessary connection between law and morality. Distinction of the law as it is from the law as it ought to be. Valid law can be moral of immoral.

Terrorism and human rights: how to preserve the balance between the efficacy of the fight against terror and the protection of human rights?

• Terrorism threatens human rights.
• Fights against terrorism threatens human rights.

Belmarsh Case: indefinite detention of terrorists suspects in the UK. The politicisation of judges? Practice in the UK to extradite non-nationals that are suspected of terrorists activities but against whom there is insufficient evidence to start criminal proceedings. European Court of Human ights: no extradition of terrorist suspects to countries where they would face an immanent threat to their life/ to torture.

Article 5 ECHR: rights to liberty and security. Article 115 ECHR: derogation in time of emergency.

• Violation of article 5.
• But required because of a public emergency pursuant to article 15.

1. Lord Bingham: it is a pre-eminently political judgement (whether there was a publich emergency threatening the life of the nation). The more political a question, the more appropriate it will be for political resolution and he less likely it is to be an appopriate metter for judicial decision. The present question seems to me to be very much at the political end of the spectrum.
2. Lord Nicholls of Birkenhead: indefinite imprisonment without charge of trial is anathema in any country which observes the rule of law. The principal weakness in the goverments vase lies in the different treatment accorded to nationals and non-nationals. It is difficult to see how a public emergency which alone would justify such detention, can exist when lesser proactive stept suffice in the case of British citizens suspected of being international terrorists.
3. Lord Hoffman: of course the government has a duty to protect the lives and property of its citizens. But is a duty which it owes all the time and which it must discharge without detroying our constitutional freemdoms. In my opinion detention without trial in any form, not compatible with out constitution. The real threat to the life of the nation, in the sense of people living in accordance with its traditional laws and political values, comes not from terrorism but froms laws such as these.

Belmarsh Case and the Lords:

1. Lord Bingham: deference to the decision of Parliament. Existence of emergency situation as pre-eminently political judgement.
2. Lord Birkenhead: scrutiny of the decision of Parliament on formal grounds of irrationality and discrimination. Unequal treatment of UK nationals and non-nationals.
3. Lord Hoffman: scrutiny of the decision of Parliament on substantive human rights grounds. No detention without trial.

Outcome of the case: the detention without trial of non-UK nationals violates the European Convention on Human Rights. Because it artitrarily discriminates between UK nationals and UK non­nationals. Reaction of the UK legislature: the new Prevention of Terrorist Act 2005 allowed for the detention of any terrorist suspect regardless of nationality.

Kontaktsperre Decision: the Bundesverfassungsgericht (German Federal Constitutional Court).

If a rerrorist organsation poses an immanent danger to the life, the physical integrity or the freedom of a person the kontaktsperre Gesetz authorises the competent minister to issue ordinances preventing prisoners convictes of terrorism:

• To communicate with each other and with the outside world.
• To communicatie with their defence council.

Justification: it can be assumed that Dr. Schleyer is still alive. Given the extraordinarty situation brought about by the death threat to Dr Schleyer and the request of the abductors, the State's obligation to protect the life of Dr Schleyer can only be fulfilled through a Kontaktsperre. German Federal Constitutional Court: the kontaksperre statute and the ordinance violate the prisoners human rights as guarenteed by the German Constitution. Decision of the court:

Negative rights of prisoners: protection against the State.

The human rights of the prisoners conflict with the human rights of the abducted Schleyer. Positive rights of Schleyer: protection by the State.

No violation of the human rights of the prisoners. Interference with human rights of the prisoners is jusftified because it is a necessary and proportionate measure to:

• Protect the right to life of Schleyer.
• Protect the rule of law.

Unequal treatment between terrorists and other prisoners is justified.

In this decision the German Constitution is an objective value order:

• The constitution is the moraal ID of the German people.
• Human rights embody values that express the goasl and aspirations of the German people.

If constitutionally protected human rights conflict with each other (negtaive rights prisoners, positive richts of Schlayer), they must be weighted.

Value jurisprudence: balancing human rights as values. All human rights embody values that are equal. If human rights conflict with each other in concrete cases, they must be weighted to establish an equilibrium. Other constitutionally protected legal goods can also be considered in the weighting.

Positivist critique of value jurisprudence: constitution as objective pre-given of values. Moralisation of the law and imposition of a pre-determined (German) way of life on the people. Disempowerment of parliament and the people. Judges as law-makers.

Positivist: undermines democracy and the seperation of powers. Undermines legal certainty.