Forgetting the act of forgetting

Raz's inaccessible origin of legal reasoning

pp. 247-293

in: William E. Conklin, The invisible origins of legal positivism, Berlin, Springer, 2001

Abstract

The tradition of legal positivism, we have now observed, has consistently expelled the authorizing origin of posited norms/rules from what officials consider legal existence. Hobbes required, in the form of a social contract of autonomous authors, that the officials never return to the origin of their civil laws in a natural condition. Jean-Jacques Rousseau acknowledged the importance of legislated laws only to supplement a General Will which, I argued from his works, was divine. John Austin took up the notion of `the habits of the people" only to expel them as laws improperly so called because the people were not a distinct and assignable author on the institutional hierarchy that officials consider the "real" and the "practical." Kelsen realized the importance of a pure concept as the presupposition of the trace of authority through the language of officials, but he understood the concept in such a manner that it was unsignified and unsignifiable and, as such, invisible to the language of the officials. H.L.A. Hart shifted the authorizing origin to the immediacy of bonding that an official experiences with a judicial practice only to exclude such an immediacy as pre-legal. The legal, for Hart — as for Hobbes, Rousseau, Austin, and Kelsen — was written in scripts that distinct and assignable officials, situated on a pyramidal hierarchy, authored. With each great thinker, the most important source orarcheof authorizing posited laws was inaccessible from the language of legal norms/rules.