Focus in Our Reading
• Remember the 3 commonplaces?
[1] Law is a matter of social fact
[2] Law is authoritative
[3] Law is for the common good
Chapter 1: Law must be for the common good
Chapter 2: Authority and common good create fundamental
legal roles
Chapter 3: The Aims of Law
Chapter 4: The Aims and Criminal Law
Chapter 5: The Aims and Tort Law
Chapter 6: Challenges to the 3 Commonplaces
Unit 9 and Chapter 6
• This Chapter discusses legal philosophies that challenge the
fundamental roles we have studied about our Legal System.
[1] Against the Role of Subject: Philosophical Anarchism
[2] Against the Role of Legislator:
Marxism / Feminist Legal Theory / Critical Race Theory
[3] Against the Role of Judge:
American Legal Realism
Critical Legal Studies
Challenging the Law
• In order to be non-defective, law must be:
[1] genuinely authoritative
[2] genuinely for the common good
• If these commonplaces are false or misleading, it
puts in question the roles of subject, legislator,
and judge in paradigmatic [model] legal systems.
• Is law genuinely authoritative?
• Is it for the common good? Some say NO.
Against the Role of Subject
• Philosophical anarchism [rebellion] challenges
the duty of subjects to obey law.
– How can they do that?
– Isn’t it self-evident we should obey the law?
Maybe not?
• There are two ways anarchists challenge the
role of subject.
[1] Moral duty to be autonomous
[2] Moral duty to obey is irrelevant
[1] Moral Duty to be Autonomous
• Robert Paul Wolff argues:
[1] There is a fundamental
incompatibility between
authority and autonomy,
[2] We have a moral duty to be
and remain autonomous.
• Hence, to be a faithful
subject asks too much in
terms of sacrifice of one’s
autonomy to be a role
worth fulfilling.
• A response to this argument:
[1] Unless the laws are grossly
unjust, one should obey
because there needs to be a
common standard to divide
up responsibilities to promote
the common good, and
[2 ] The law is a good candidate
for that standard.
The loss of autonomy is justified
by the gain for the common
good.
Loss of Autonomy
Is the loss of autonomy justified by the gain for the common good?
1. Do we have a moral duty to be autonomous rather than
someone’s slave?
2. Does obedience to law make us a slave, impair our freedom?
3. Does the argument that it benefits the common good really
address the question?
4. If we are being compelled to act on behalf of others – what do we
gain individually?
(2) Is Moral Duty to Obey
Irrelevant?
• M.B.E. Smith, A. John
Simmons, Joseph Raz, and
others argue that no theory
of moral requirement to
obey the law is successful.
• Many acts that the law
forbids, people would
avoid anyway, even if the
law were silent, because
they are mala in se or
wrong in themselves.
• Do you agree?
• Other acts, which are not
mala in se, such as driving on the
right side of the road, people
would obey because such
customs or patterns of
coordination exist and it
endangers self and others to
violate them.
• Even if there were no duty to
obey law and honor the
demands of being a subject,
there are other moral
requirements that would obtain
the same result.
Response
• There are a number of situations that do not fit into the
mala in se patterns.
• An important role that law has is regulating the demands we
can make on each other, e.g., not to endanger others by
driving drunk.
• However, your definition of drunk might not be the same as
mine. Much of the law is concerned with making more
precise these standards of justice.
• Can you think of another response?
• Do you agree that people would do the right thing anyway
even if there were no duty to obey law?
Philosophical vs Political Anarchism
• Remember that Philosophical Anarchism
challenges the duty of subjects to obey law.
• Political anarchism is a claim about the
undesirability of the state, rather than if one
should obey the law.
Why is “the State” Undesirable?
• Political anarchists’ viewpoints
[1] Point out dangers posed by states due to hierarchical
structures ruling through coercion, with authority
wielded by powerful elites.
[2] Argue that the state causes many of the harms it is
supposed to remedy.
- Example: states divide subjects from each other, oppressing
some classes for the benefit of others.
[3] This oppression causes crime. However, this anti-state
position of political anarchists does not necessarily
require an anti-law position. (Distinguish between
anti-hierarchy and anti-law)
Against the Role of Legislator
• Marx claimed that economic features of
society generate constraints on noneconomic
possibilities within that society. (First we look
at economics, then tie that in with law)
• Is this true? Do you agree?
• Do economics affect values?
• Does it determine what is moral and immoral?
• Is law designed to keep the rich rich and the
poor poor?
Other Examples Against the Role of
Legislator
• Marxists are skeptical about the “science” of economics. They
find two notions particularly absurd:
[1] The so-called “free market” (it’s not “free”)
[2] The so-called “law” of supply and demand (it’s not a law)
• Marxists say these notions, masquerading as “science,” are
simply myths that serve the interests of capitalism.
• To Marxists, the capitalists control both the market (i.e. no
way is it free), and also both supply and demand (i.e., there is
no neutral “law” of supply and demand).
More Examples Against the
Role of Legislator
• Capitalists clearly control supply, but they also
control demand by their control of media, which
they use to manipulate people’s perceptions of their
“needs.”
• Capitalists make people think they need things that
they really don’t need.
• Having created “demand,” capitalists can raise prices
(leaving workers’ wages the same), and make more
and more profits.
• The condition of the worker inevitably gets worse
The more he produces, the less he can buy.
Legislation is corrupt
• Marx says the economic class to which one
belongs determines the concept of morality
and value that one adopts.
• It is inevitable over the long haul that the
results of one class dominating another will be
reflected in law itself.
• Principles that appear to be neutral on their
face will turn out to be favorable to those in
power.
Why?
• This bias could be due to:
[a] Those with economic power often have
control over making and applying law
[b] Lawmakers and judges are drawn from the
elite class
[c] The legal order is unable to sustain norms
too contrary to the prevailing economic
relationships.
• What do you think?
Historical “evidence”
• Evidence of this phenomenon is shown as law’s initial
response to lawsuits by factory workers against their
employers for injuries received on the job.
• The defenses of [1] assumption of risk [2] contributory
negligence [3] the fellow servant rule
were all used by judges to deny recovery.
• Even the advent of Worker’s Compensation, which provided
an alternative method of recovery, was just a concession
that blocked fuller reform as it [1] does not compensate pain
and suffering [2] caps damages, allowing employers to pay
far less than full compensation for on the job injuries.
Why does Worker’s Comp limit damages payable to workers?
Remember What Marx and
His Followers Say
• Rules of property are not neutral but tools by
which the wealthy [1]accumulate wealth
[2]accumulate power to the disadvantage of
those who are poor.
• Free speech is not neutral but enables the
wealthy to have a louder voice and more
influence.
• The test of neutrality is not appearance
but the real effects.
Law Can’t Be for Common Good
Because of Class Conflict
• Marx’s points:
– There is no neutral concept of justice and good
– Class status shapes members’ concepts of justice
and the common good
– There is no genuine long-term prospect that law
can be for the common good.
– There can be no hope for law that is for the
common good until society no longer consists of
classes in conflict.
• What do you think?
Those Who Think Marx Was Only
Partly Right
• Pluralists accept Marx’s views about power
and how that precludes neutrality in law, but
reject his view that economics is the ultimate
determining ground.
• If not economics, then what else could
determine allocation of power by law?
Feminist Legal Theory
• Men hold a dominant position socially and
economically
• That causes law to be biased in favor of men
even when it appears to be neutral on its face
• For example, Catherine MacKinnon claims that
interpreting freedom of speech to protect
pornography undervalues the harm
pornography causes to women
Critical Race Theory
• A similar argument is made by Critical Race
Theory regarding hate speech
• Both views say that until power relationships
based upon gender or race are eliminated, the
law will favor the dominant group
• Legislators will not be able to genuinely
deliberate about the common good.
• What do you think?
Author’s response
• The point about one’s views being determined
by class, gender, or race is made too strongly
• Legislators are capable of being objectively
benevolent.
• In other words, they’re exaggerating
Against the Role of Judge
• Judges take legal rules as a guide in making
decisions.
• Sometimes the law “runs out” and, it is
argued, sometimes judges have to make
decisions that go beyond the rules.
• This raises two questions:
– (1) How pervasive is this phenomenon?
– (2) To what extent does this call into question the
role of judge?
American Legal Realism
[Against the Role of Judge]
• American Legal Realism says law is massively
indeterminate, at least for those cases that
are appealed (as contrasted with mundane
cases).
• This skepticism is founded on the idea that
interpretive standards are not sufficient to
account for what will be relevant in
determining what precedent is or what
statutes and other law mean in a particular
case.
Critical Legal Studies
[Against the Role of Judge]
The philosophy of Critical legal studies says:
• Unlike standard Marxism, it does not hold that
the dominant group need be characterized in
economic terms.
• Offshoots of this approach include:
– Feminist legal theory
– Critical race studies
But aren’t outcomes predictable?
• The fact that judges’ decisions are largely
predictable cannot be explained by the law’s
determinacy but from other facts:
– political beliefs
– moral beliefs
– social factors, such as class
• Do you agree?
Consequences
If realists are right, appellate judges are not
making decisions in accordance with their role
as judge because they are not applying law.
Do you see how this challenges the integrity of
the legal system?
Critical Legal Studies Go Further
• Even in the everyday workings of the lower court the law
is filled with indeterminacy
• Judges have shared substantive extralegal understandings
– moral views
– political views
– ideas that property understandings can’t be violated
• Concluding that “law is politics.”
• The critics say judges are lawmakers rather than
appliers of law.
If They’re Right, Do We Really
Need Judges?
• If legal indeterminacy is so great, why should subjects accept judicial
decisions as authoritative if those decisions are not fixed by law but are
the result of judicial discretion?
• If cases are not decided based upon technical legal reasoning, but are the
result of broader moral and political thinking…
• Judges as a class have no more expertise in these areas than other
persons. (Should judges should be elected like legislators?)
• Response 1: An argument for having judges do this work is:
– the practical need for binding decisions resolving disputes
– but this raises the question of whether alternative sources of
resolution might be better
Is judging just politics?
Response 2
Response 2:
– if cases are decided based upon shared moral and
political understandings, perhaps these
understandings are genuine truths about human
good and are generally shared and easily known.
• Do judges reflect our shared moral and
political understandings?