Lecture Notes 1/12, 1/14, 1/19
What is this class?
- Philosophy, not law
o Philosophical reflection on the law
- Examples of questions we will ask:
o Is there a moral duty to obey the law?
 anarchism
o do you need a duty to obey the law to have a legitimate government?
o what is the nature of authority?
 is it rational to obey an authority?
o what is the nature of law?
 is it composed of social facts, morality, something else?
A bit on the attempt to find the nature of law
- we will use conceptual analysis
o attempt to figure out the content of our concept of law
o the necessary and sufficient criteria for something’s being law
- why do this? what makes this of philosophical problem?
o not just because it is challenging
o it is challenging to come up with the content of the concept of a bachelor
 problem cases like 2 year old boys and the pope
o but that doesn’t mean there is a philosophy of bachelorhood
- the reason philosophers engage in conceptual analysis is because of puzzles (conceptual
conflict generating problems at high level of abstraction) – you try to clarify your
concept to solve the puzzle
o Example:
 determinism looks true (from science and psychology) – nothing could be
otherwise than it is (given antecedent events and laws of nature)
 But we also speak about free will (in connection with morality), which
suggests that one could have done otherwise than one did
 that’s a puzzle
 engage in conceptual analysis to try to solve this problem
 what do we mean by free will, by determinism?
- Why is anyone motivated to engage in conceptual inquiry with respect to what the law
is?
o puzzles that have to do with the relation between law and ethics on one hand
and law and social facts on other
o law is strange ontologically – where is it? can’t really bump into it
Will start out with a brief exposure to this question of what is law through article by Felix Cohen
He is an example of a legal realist
-
legal realism is generally associated with the view that the law is what a court says it is
(or the law is a court’s judgment)
o why did some realists say this?
 legal rules are indeterminate
 so they cannot tell the judge how to decide
 but how indeterminate is the law really?
 seems overblown
 different argument – judicial supremacy
 a judge’s judgment is binding (unless overturned on appeal) even
if he misapplies the law
 the judgment seems to be what matters legally to the parties,
even when the law is completely determinate
 but that does not mean the law is only the judgment
1. otherwise how can one make sense of criticisms that
judges misapply the law?
 we will discuss the problem of judicial supremacy later
BUT Cohen’s criticism of legal rules is different from the above two
Starts out with question of whether there is personal jurisdiction over a corporation out of its
state of incorporation
- theory used by court in Tauza v. Susquehanna Coal Company (NY 1917)
- there is PJ if the corp. is “present” in the state
- this tells us nothing – it is a conclusion
- what is really motivating the decision to assert PJ?
o social facts (e.g. burdens on defendant corp. to go to the forum, burdens on
plaintiff to go to corp.’s state of incorporation) and moral values
more general point – adjudication is always about the moral consequences of social facts
- past theories of law have muddled the two elements
- Blackstonian definition of law
- "a rule of civil conduct, prescribed by the supreme power in a State, commanding what is
right, and prohibiting what is wrong”
- mixes two things
- Hobbesian idea of law as force (social facts)
- and Sir Edward Coke idea of law as morality (“law is perfection of reason”)
- this results in confusion
o social facts are misdescribed
 “that can’t be the law because it is immoral”
o moral judgment is corrupted
 “I have to (morally) adjudicate a certain way because it is ‘the law’”
Cohen recommends that we understand the law solely as social facts
-
-
actual behavior of courts (and other officials)
o patterns of behavior –not the particular decision of the court that will hear one’s
case
after determining the law, a judge should then use morality to determine what to do
So A and B sign a paper
is there a contract?
o Cohen would say there is if there is a probability or pattern of enforcement
It does not follow from those social facts how a court hearing the case should decide
o judge needs a moral argument to decide to continue the pattern of enforcement
there are usually good moral reasons to do so, but how a court decides should be
answered morally:
“ Intellectual clarity requires that we carefully distinguish between the two problems of
(1) objective description, and (2) critical judgment, which classical jurisprudence lumps
under the same phrase. Such a distinction realistic jurisprudence offers with the doublebarreled thesis: (1) that every legal rule or concept is simply a function of judicial
decisions to which all questions of value are irrelevant, and (2) that the problem of the
judge is not whether a legal rule or concept actually exists but whether it ought to exist.
Clarity on two fronts is the result. Description of legal facts becomes more objective, and
legal criticism becomes more critical.”
worries about Cohen’s approach
- 1) judges are too unconstrained under it
- 2) even if their moral judgment keeps them in line (indeed even if everything goes on the
same way after judges adopt Cohen’s approach as before) there is something that has
dropped out of consideration
o judges are thinking only of social facts and morality
o where is the law? the legal rules?
o suggests that maybe the law is something different from morality and social
facts
- we will return to these questions of the nature of law
Next question
Anarchist question – Is there a prima facie moral obligation to obey the law?
What does it mean to say that there is a moral duty to X?
Is there a moral duty to do what a fortune cookie says, just because there is a fortune
cookie that says “Do not kill”?
NO
Although there is a duty to do what that particular fortune cookie says, the fact that it is
in a fortune cookie is irrelevant to one’s moral obligations
we are concerned with whether there is a generic duty to obey the law
-
the fact that there are laws whose content is good is irrelevant to whether
there is a generic duty
BUT we are not concerned whether there is an Absolute Moral Duty – if an absolute moral duty
exists to X means that one must always X, no matter what the countervailing moral
considerations
- there are probably no absolute moral duties
We are interested in a prima facie moral duty to obey the law – this can be overridden by
weightier moral duties
There are many moral reasons for obeying the law besides the fact that it is the law – these do
not show that there is a generic duty to obey the law
e.g.
- the content of the law happens to be good
- violation of the law happens to be likely to result in punishment
Spent a long time on another question
- is there a prima facie moral duty to keep your promises?
- That means that making a promise itself must give you a moral duty to keep
your promise, not something that is contingently associated with making a
promise
- Example – if the reason we should keep our promises is that others
reasonably rely on them, then there is no duty to keep promises, because
one can have promise w/o reasonable reliance (and reasonable reliance w/o
a promise)
- but some believe that the promise itself creates a prima facie moral duty to
keep it even without reasonable reliance – those people really believe in a
moral duty to keep your promises
Must do the same with the law – what gives as a duty to obey the law must be essential to the
law, not just contingently associated with it
How weak can a prima facie duty be? Can it be so weak that it is trumped by any other duty?
- duty to obey the law should probably be relatively strong
Long discussion about what the government claims
- does it claim a prima facie duty to obey the law?
- Green: it is conceivable that a government could exist that made no such claim – it only
let you know that if you disobeyed there will be punishment
- BUT what does the US government claim?
o must distinguish cases where the law lets you off the hook itself
 e.g necessity defenses
o from cases where the law definitively says to X
o in the latter case, does the US government think you have a prima facie moral
reason to X?
o Green: it may say something stronger – you have an absolute moral obligation to
X
o Green: Indeed might claim something even stronger – you have an absolute
moral obligation to X AND need to X without relying on your own moral
judgment (idea of authority – will discuss later) – “just do as I say!”
o discussion of what the government’s attitude toward civil disobedience means
about whether the government thinks there is a duty to obey the law
o Green: fact that government punishes us suggests that it thinks there is a duty of
obedience – hard to justify punishment otherwise
Smith draws a distinction between 3 types of argument for a duty to obey the law:
A. Consequentialist
1. the duty to avoid bad consequences (which is a duty we all have by virtue of being
human beings), justifies the duty to obey the law – if we break any law bad
consequences will result
B. Consent
1. the duty to obey the law is one that we have willingly accepted through and actual
or implicit promise to obey – doesn’t matter if there are bad consequences from
disobedience
C. Arguments based on the state having conferred benefits
1. different from consent because one did not ask for the benefits
2. different from consequentialist argument because it is not clear that there will be
any bad consequences from disobedience
1st argument from benefits
Gratitude – duty is derivable from gratitude for benefits from gov’t
Avoids consent issue because it is not necessary for gratitude that one
actually agreed to the benefits
We spent some time on whether there is a moral duty of gratitude at all
- the obligation to show gratitude is arguably not moral because it is
o discretionary (it is my choice how to show gratitude)
o dependent on community norms
-
even if there is a moral duty to show gratitude, it is a bit much to claim that gratitude
requires doing whatever a person says
o If I gave you $1000 would following whatever order I barked out really be the
proper method of showing gratitude?
-
even if there is such a duty of gratitude, does it justify a duty to obey the law?
o government is not a person to whom one has a duty to show gratitude
o the way government gives us benefits (many are nonexcludable goods) suggests
that there is no duty of gratitude
o we have paid for our benefits (eg through taxes)
o government has reasons independent of beneficence to give us the benefits it
does
2nd argument – argument from duty of fair play
What is the duty of fair play (setting aside whether you can use it to argue for duty to
obey the law)
Cooperative system
Participants have abided by rules that disadvantaged them to create a
good that you enjoyed
puts on you an obligation to abide by the rules too
not a consent argument – didn’t choose to get the good
Green: also probably not consequentialist – the system will not fall apart
if you don’t join in
notice under this argument the duty to obey the law is a duty to one’s fellow citizens who have
abided by the law, not to the gov’t
-
-
-
-
1st objection
o Is there a duty of fair play at all
- Nozick
example of public address system
no duty to join in even if you enjoyed the system
note that this is an example of Lockean idea – need to consent to
create duty of obedience
o but is Nozick’s objection really plausible for primary goods?
o defense, protection from violence etc.
o the benefits of the public address system are not nearly as
significant
the primary goods one gets from the government are those one
would really want
would probably have asked for them if given a choice – does that
matter?
Assume there is such a duty of fair play
is it enough to show a duty to obey law
-
- examples of laws that don’t generate any good
o Gov’t prohibits sodomy
o Everyone else abided by rule
o what benefit has one received from this?