The Nature of Law
Katarzyna Gromek Broc
York University Law School
Form and Function of the law
debate
Function
• Focus on purpose of law, e.g. Llewellyn’s law
jobs: dissolution of the trouble case;
preventative channelling and reorientation of
conduct; allocation of authority; net drive
• The function of the law is more important
than its shape
Form or function?
• Is the form (shape) or function (job) of
rule governance most important?
• Limitations of formal conception:
Doesn’t answer “why do we need law?”
Only applies to developed hierarchical systems
Doesn’t account for law-like functions carried
out in more primitive societies or in less
structured environments.
Form or function?
• Limitations of functional conception:
Doesn’t distinguish strict formal hierarchical
systems from non-formal systems;
Doesn’t distinguish between the commonsense conception of law as being concerned
with state power and other exercises of power
where the law jobs are performed.
A moral or non moral conception
Legal Positivism:
• There is no necessary conceptual connection
between law and morality
• Legal validity separate to moral validity
Legal Idealism:
• There is a necessary conceptual connection
between law and morality
• Legal validity requires, in some sense, moral
validity
Legal Pluralism
Law [emanates] from the state but not only
from the state’
- Cownie, Bradney and Burton, (2003), English
Legal System in Context, 22.
Positivism and beyond
John Austin(1790–1859)
Herbert Hart (1907-1992)
Ronald Dworkin (1931 - )
John Austin and Command Theory of Law
Two key notions:
- Command
- Obedience
• Key features:
- General: maintaining the normativity of law
consists in a subject ability to predict the
chances of incurring punishment
- Every legal norm must comprise a thread
backed up by a sanction
- Habit of obedience
- of the political sovereign
Law for Austin consists in general commands
issued by sovereigns to their subjects (who
have a general habit of compliance), and
backed up by threat of force (in the form of
sanctions).
Problems with Austin’s account:
Some laws do not command anything, but
rather:
- give instructions on how to successfully
achieve certain legal ends;
- confer the power to make law.
Two lessons:
1) The Social Thesis: Law is a matter of social
facts
2) The Separation Thesis: Law is only a matter
of social facts. Law and morality are
conceptually distinct
Legal Positivism: The existence and content of
law depend on social facts, not on its moral
qualities.
H.L.A. Hart and the Concept of Law
Law is a system of social rules.
1) Internal aspect of social rules;
2) Rules have different functions.
• Primary rules
• Secondary rules:
- Rules of recognition
- Rules of change
- Rules of adjudication
Law is the union of primary and secondary rules.
Ronald Dworkin: principles vs rules
Difference between rules and principles:
• legal rules are an all-or-nothing concept
principles of justice have “weight”
• legal rules are created by their enactment
principles are to be inferred as the best explanation for
existing legal practice
judges need to make a judgement that will:
• provide the “best fit” with the body of
legislative and judicial rules, decisions and
unwritten principles of the common law;
• reveal the law in its “best light” in terms of
moral and political soundness.
Natural law
At least some laws are authoritative in
virtue of their moral content
There is some kind of non-conventional
relation between law and morality.
Classical Natural Law Theory (Aquinas,
Blackstone)
Conceptual naturalism: a norm that does not
conform to the natural law cannot be legally
valid.
“[E]very human law has just so much of the
nature of law as is derived from the law of
nature. But if in any point it deflects from the
law of nature, it is no longer a law but a
perversion of law” (Aquinas)
“This law of nature, being co-eval with
mankind and dictated by God himself, is of
course superior in obligation to any other. It is
binding over all the globe, in all countries, and
at all times: no human laws are of any validity,
if contrary to this; and such of them as are
valid derive all their force, and all their
authority, mediately or immediately, from this
original” (William Blackstone).
Natural Law
Two core claims of conceptual naturalism:
1) there can be no legally valid standards that
conflict with the natural law;
2) all valid laws derive what force and authority
they have from the natural law.
John Finnis’ Neo-Naturalism
Basic goods:
-
Life
Health
Knowledge
Play
Friendship
Religion
aesthetic experience.
Natural Law
• “A ruler’s use of authority is radically defective if he
exploits his opportunities by making stipulations
intended by him not for the common good but for
his own or his friends’ or party’s or faction’s
advantage, or out of malice against some person or
group” (Finnis 1980, 352).
• The ultimate justification for the ruler’s moral
authority “is the fact that he has the opportunity,
and thus the responsibility, of furthering the
common good by stipulating solutions to a
community’s co- ordination problems” (Finnis 1980,
351).
Lon L. Fuller’s functionalist conception of law
Law’s essential function is to “achiev[e]
[social] order through subjecting people’s
conduct to the guidance of general rules by
which they may themselves orient their
behavior” (Fuller 1965, 657).
Functionalist conception of law: nothing can count as law unless
it is capable of performing law’s essential function of guiding
behavior.
But to be capable of performing this function, a system of rules
must satisfy the following principles:
• (P1) the rules must be expressed in general terms;
• (P2) the rules must be publicly promulgated;
• (P3) the rules must be prospective in effect;
• (P4) the rules must be expressed in understandable terms;
• (P5) the rules must be consistent with one another;
• (P6) the rules must not require conduct beyond the powers of
the affected parties;
• (P7) the rules must not be changed so frequently that the
subject cannot rely on them; and
• (P8) the rules must be administered in a manner consistent
with their wording.
• “What I have called the internal morality of
law is … a procedural version of natural law …
[in the sense that it is] concerned, not with
the substantive aims of legal rules, but with
the ways in which a system of rules for
governing human conduct must be
constructed and administered if it is to be
efficacious and at the same time remain what
it purports to be” (Fuller 1964, 96- 97).