The Nature of Law
“The/A Standard Story”
1
Main Question of General
Jurisprudence
• “What is Law?”
• Different from: “What is the law of/in this or
that legal system/jurisdiction/domain”
• Question presupposes that law is:
– A unique/distinctive social phenomenon
– With more or less universal characteristics
– That can be discerned through “philosophical
analysis”
2
Methodology
• Considerable controversy over past few
decades on how to pursue philosophical
analysis in legal theory:
– Morally neutral conceptual analysis? (Hart,
Marmor, Raz (?), Dickson)
– Morally engaged “interpretation”? (Dworkin)
– Naturalized jurisprudence? (Leiter)
3
Distinctive Features of Law
• Law guides/purports to guide conduct, to
prescribe behaviour (similar to morality, norms
of rationality, cultural norms, etc.)
• Purports to provide “reasons for action”
• Law appears to have an “essential normative
character”
• What, if anything, is distinctive about LAW
4
• Laws (always? typically? mainly?) appear to
originate in human actions; “acts of will”
• But only some acts of will bring about the existence
of laws
• Thus, two main ideas of interest concerning the
nature of law:
– Legal Validity – general conditions (types of
conditions) which render a norm legally valid
– Legal Normativity – an explanation of (a) how
legal norms (can/do) give rise to reasons for
action; and (b) what kinds of reasons are involved
5
Main Theme 1: Legal Validity
• Indexed to time and place (and sphere of activity?)
• Laws can be valid at one time but not others
• Laws can be valid in one place (e.g. Canada) but not
others ( e.g. US, China)
Legal Philosopher’s Question
• What are the general conditions that make any
proposition of the following form true (or false)?
“L is the law at time t in circumstances C [with respect to
a given place and/or population/sphere of activity]”
6
Two Schools of Thought
Legal Positivism
• Traditionally associated with two fundamental
claims
• Thesis 1: “Social Thesis”
– Law is a profoundly social phenomenon
– The conditions of legal validity consist of/are
fundamentally a function of special social facts
– These special social facts (e.g. acts of legislation or
judicial decisions) constitute the “sources of
law”
7
Legal Positivism
– Hobbes/Austin/Bentham: command of a political
sovereign whose identity is socially determined
(enjoys general habit of obedience; habitually
obeys no one else; issues general commands;
threat of penalty/sanction)
– Hart: conventional rules (secondary rules, i.e. rules
about rules) accepted and practiced by officials
(especially judges) which determine certain facts
or events that provide the ways for the creation,
modification, annulment, and authoritative
interpretation of, legal standards
8
Legal Positivism, cont’d
•
•
•
•
Thesis Two: The Separation/Separability Thesis
An implication of the Social Thesis
A “conceptual separation between law and morality”
A conceptual separation between law and what it
ought to be
• A norm can be legally valid even if it lacks moral
merit – e.g., even if its unjust or unfair or fails to treat
citizens equally
• L has appropriate social source ≠> L has moral merit
9
Separation/Separability Thesis
• John Austin (1790-1859):“The existence of law is one thing;
its merit and demerit another. Whether it be or be not is one
enquiry; whether it be or be not conformable to an assumed
standard, is a different enquiry.”
• Consistent with considerable overlap between law
and morality
• E.g. Both law and morality contain norms dealing
with killing, violence, keeping of promises, etc.
• Both refer to obligations and rights
• Laws are often enacted for moral reasons
• Etc.
10
Separation/Separability Thesis,
cont’d
• Overlap/connections can be a function of:
– contingent social fact
– “natural necessity” “minimum content of natural
law doctrine” (Hart)
• Given certain natural facts about human beings and their
environment, law would/could not arise and be
sustained unless, like morality, it regulated violence
(criminal and tort law); keeping of promises (contract
law); and possession (property law, estate law, etc.)
• Without such regulation no one would have reason to
support/submit to law
– conceptual necessity; in virtue of what law is
(Green)
11
Green’s Conceptual
Connections
• Necessarily, law deals with moral matters (regulates our
most vital (moral) interests)
• Necessarily, law makes moral claims on its subjects
(purports to impose moral obligations; requires
consideration of the interests of others)
• Necessarily, law is justice-apt (“In view of the
normative function of law in creating and enforcing
obligations and rights, it always makes sense to ask
whether it is just, and where it is found deficient to
demand reform.” p. 19)
12
Separation/Separbility Thesis
• So what’s left of the Separation/Separability Thesis?
• Depends on type of legal positivism
• Two main contemporary forms: Exclusive (Hard)
Legal Positivism versus Inclusive (Soft) Legal
Positivism
• Exclusive Positivists: Raz, Green, Marmor,
Giudice/Culver
• Inclusive Positivists: Hart, Coleman, Kramer,
Waluchow
13
Legal Positivism: A Division
Exclusive Legal Positivism (ELP)
1. Necessarily, the legal validity of a norm is
determined by facts of special kinds specified in
a legal system’s socially constituted “Rule of
Recognition” (Hart)
2. Necessarily, the types of facts specified in a Rule
of Recognition are exclusively social facts – e.g.
enactment, judicial decision, some relevant
person’s beliefs regarding X, etc.
14
Legal Positivism: A Division
Inclusive Legal Positivism (ILP)
1. Necessarily, the legal validity of a norm is determined by
facts of special kinds specified in a legal system’s
socially constituted “Rule of Recognition” (Hart)
2. The types of facts specified in a Rule of Recognition are
not necessarily restricted to social facts – e.g. enactment;
judicial decision; S’s beliefs regarding X; etc.
3. The types of facts specified in a Rule of Recognition can
include moral facts
N.B. Social thesis respected: social R of R specifies
whether moral facts count
15
An Implication of ILP
• The legal validity of a norm can (but need not)
depend on its moral content
• Depends on whether Rule of Recognition requires
conformity with a particular moral norm as a
condition of legal validity
• Thus: The social conventions on the basis of which a
community determines its laws may, but need not,
contain reference to acceptable moral content as a
condition of legal validity
16
Natural Law Theory
• Natural Law Theory: The moral content of a
putatively valid legal norm necessarily bears
on its legal validity
• A norm, with the appropriate social origin, is
not legally valid unless it passes a certain
threshold of moral correctness
• This crucial condition of legal validity not
merely a function of social convention
• A function of the very nature of law
17
Natural Law Theory, cont’d
• Valid positive law must, of conceptual
necessity, conform in its content to some basic
precepts of Natural Law
– St Thomas Aquinas, “an unjust law is no
law at all”
[N.B. Some advocates of NLT dispute that this
accurately captures the central claims of NLT]
18
ST. THOMAS AQUINAS’
DEFINITION OF LAW
• L is a law (legally valid norm) if and only
if:
1. L is an ordinance of reason
2. L is for the common good
3. L is made by him who has care of the
community
4. L is promulgated
19
ST. THOMAS AQUINAS’ THEORY OF LAW
• ETERNAL LAW: “the plan of government in the Chief
Governor.” It includes laws of physics, biology, planetary
motion, musical harmony, and…
• NATURAL LAW: Discoverable by (natural) reason; pertains to
conduct of rational creatures; directs them towards “natural
ends” (Aristotelean teleology); fundamental principle of NL:
“good is to be pursued and evil avoided”); good defined in
terms of natural ends
• DIVINE LAW: corrective (mistakes re: NL) and supplement
(supernatural end; NL pertains to natural ends only);
authoritative religious texts and pronouncements
20
ST. THOMAS AQUINAS’ NLT
• HUMAN LAW
– Creation of human sovereign (“he who has care of
the community”)
– Should be derived from NL
– Two forms of derivation
• Deduction
• “Determination of Common Notions” (“determinatio”)
21
ST. THOMAS AQUINAS’ NLT
Deduction: E.g.
1. One should harm no person without moral
justification or excuse (self defense, defense of the
innocent, etc.) (NL)
2. Killing harms a person
3. Therefore, one should kill no person without moral
justification or excuse (NL)
4. One who commits homicide without legal justification
or excuse is guilty of murder (Human Law)
22
ST. THOMAS AQUINAS’ NLT
Determination of Common Notions
• Discretionary choice required: Two main contexts
1. Co-ordination problems (drive on right or left?)
2. “underdetermination” of value
Example 1: NL requires equality in hiring practices
– yes to affirmative action?
– no to affirmative action (reverse
discrimination)?
23
ST. THOMAS AQUINAS’ NLT
• Example 2: NL requires “fair tax system”
• Various possibilities
S1, S2, S3 unfair – excluded
S4, S5, S6 all fair
S4 & S5 much more fair than S6
S6 excluded
Neither S4 nor S5 more fair than the other
Choice between S4 & S5 “underdetermined” by NL
Sovereign must choose between S4 & S5 – act of will
24
ST. THOMAS AQUINAS’ NLT
• What if sovereign commits an error in deriving HL
from NL?
• Sovereign’s directive not valid law
• Directive is “perversion of law” – “act of violence”
• Sovereign’s directive may/should be disobeyed unless
compliance necessary “to avoid scandal and
disturbance”
• BUT compliance required NOT because of NL duty to
obey valid HL, but because of NL duty to avoid
scandal and disturbance
25
Features of Aquinas’ NLT
•
•
•
The notion of legality necessarily contains moral
content/imposes moral limits
Human legal systems necessarily have a certain
moral content – includes certain moral principles
(i.e., the principles of NL) – regardless of
recognition in social sources
Class of legal norms can be both wider and
narrower than the class of legal norms recognized
by a human legal system – by social sources.
26
Features of Aquinas’ NLT, cont’d
•
•
•
•
A valid law must (not merely should) be just – an
ordinance of reason directed toward the common
good
If not, then “not a law at all” but a “perversion of
law” – an “act of violence”
By its very nature human law is a means of
implementing, in social circumstances, the Natural
Law
The authority of HL – its normative character or
dimension – derives from this nature
27
Main Theme 2: The Normative
Character of Law
• What is the nature of the legal “ought” – of “legal
obligation”?
• Is there is such a thing as a distinctly legal
obligation?
• Is it a species of moral obligation? (Aquinas?)
• In other words, is to be under legal obligation to
be subject to a moral obligation imposed by a
legal rule derived in some way from valid moral
principles (NL)
• Is it to be subject to a sanction for violation of
law? (Austin’s reductionism)
28
Hart’s Alternative
• Hart: neither option is correct
• Austin’s reductionism fails to distinguish being
obliged (by threat of sanction) and being under
obligation
• Those who accept legal norms as imposing
obligations/providing reasons for action view the
norms themselves as providing the reasons for action
and (possibly) for the imposition of sanctions in the
event of a failure to comply
• They view themselves as bound by the norm, not any
sanction there might be for failure to comply with it
29
Hart’s Alternative
• Those who accept legal norms as providing reasons
for action (e.g. imposing a legal obligation) take the
“internal point of view” towards those norms
• But to take a legal norm as providing a reason for
action is not necessarily to take it as providing a
moral reason for action
• Therefore, legal obligation is not a species of moral
obligation
• Hart’s “any reasons thesis”
30
Raz: Normative Character of Law
• Hart: the key to understanding the normativity of law
is the acceptance and use of valid legal rules – norms
– as guides to behaviour; law is essentially a rulegoverned enterprise
• Reasons (moral or otherwise) behind acceptance and
use of legal norms as reasons for action irrelevant to
understanding the normativity of law
• Raz: Hart incorrect. The key to understanding the
normativity of law is to appreciate the special kind of
“service” law is uniquely capable of providing
31
Raz: The Service Conception
• Law has the potential to help us satisfy, in our
conduct, the requirements of “right reason”
• It does so by issuing authoritative directives
purporting to direct us towards those requirements
• When it satisfies this potential it provides us with
valid reasons for action and is in this way
“normative”
• Even when it fails to satisfy this potential it’s
purporting to provide this service reveals its
(potentially) normative nature
32
Raz: The Service Conception
• According to Raz, the law is a social
institution that necessarily claims to be a
legitimate authority
• Essential role of (all) authorities in our
practical reasoning is to mediate between us –
the putative subjects of the authority – and the
right reasons that apply to us in the relevant
circumstances
33
Raz: The Service Conception
• An authority has the legitimacy it claims only
if its putative subjects are likely to comply
better with the relevant reasons that apply to
them (“dependent reasons”) by following the
authority’s directives than by attempting to
figure out and act upon those dependent
reasons themselves
• Example: good financial advisor
34
Raz: The Service Conception
• Law sometimes:
– Knows better (time, resources, expertise)
– Can solve “coordination problems” by rendering
one among potentially many solutions salient
(rules of the road)
– Can provide authoritative “determinations of
common notions” – i.e. choose, for us, from
among options between which right reason is
indifferent or silent (equality in hiring?)
35
Raz: The Service Conception
• Law necessarily CLAIMS to be a legitimate authority,
serving this vital mediating function, in relation to all
matters concerning the conduct of its subjects
(comprehensiveness)
• Law further claims that its directives supersede all
other directives (supremacy)
36
Raz: Normative Character of Law
• If the law’s claims are true, i.e., it does succeed
in providing the service it claims to provide,
then it has legitimate authority and provides
binding reasons for action
• If the law’s claims are false, then it has only de
facto authority (at best) and fails to provide
binding reasons for action – but it necessarily
claims to provide such reasons
• In these ways the law is “normative”
37
Consequences/Further Features of
Raz’s Service Conception of Authority
• Law’s legitimate authority dependent on successful
fulfillment of its essential, distinctive role
• Fulfillment of law’s essential, distinctive role requires
that the identity and content of its directives can be
ascertained without appeal to underlying (hopefully
right) reasons (dependent reasons)
• It should pre-empt our reliance on those reasons
• Otherwise authority can no longer successfully
mediate between us and those dependent reasons
38
Consequences/Further Features of
Raz’s Service Conception of Authority
• Since law necessarily claims to be a legitimate
authority, it must be the kind of thing that
could at least, in principle, be a legitimate
authority
• Even when it fails to be legitimate, it must be
the KIND of thing that COULD be a legitimate
authority
39
Consequences/Further Features of
Raz’s Service Conception of Authority
• Law can only be that kind of thing if its directives can
be identified & understood independently of appeal to
dependent reasons
• One can determine whether a putative valid law has
the appropriate social source without considering its
pre-empted dependent reasons
• Therefore if ELP is true, law is the kind of institution
that is capable of serving its distinctive social role in
our practical reasoning
40
Consequences/Further Features of
Raz’s Service Conception of Authority
• However, according to ILP it’s possible that law’s
valid directives can sometimes be determined only
through appeal to relevant dependent reasons
• According to NLT, this is necessarily so – i.e. appeal
to dependent reasons is always relevant
• Therefore, ILP and NLT deny law its capacity to be
authoritative – to serve the vital role it necessarily
purports to provide
• Hence: ELP is correct, and ILP and NLT must be
rejected
41
Consequences/Further Features of
Raz’s Service Conception of Authority
• Raz’s theory consistent with both the Social
Thesis and the Separation/Separability thesis
• Social Thesis: valid law identifiable exclusive
by social facts determined as relevant by
socially constituted rules of recognition
accepted and practiced by officials (ELP)
42
Consequences/Further Features of
Raz’s Service Conception of Authority
• Separation/Separability Thesis:
– Law necessarily claims to be a legitimate authority
– But law’s claim is often false (it fails to provide its
distinctive service)
– Its directives fail to track right reason; fail properly
to reflect relevant dependent reasons
– In some cases, these reasons are/include moral
reasons
– Therefore, “The existence of law is one thing; its
merit and demerit another…” (Austin)
43