providing a general philosophical analysis of law and legal
institutions. Issues in the field range from abstract conceptual
questions about the nature of law and legal systems to normative
questions about the relationship between law and morality and the
justification for various legal institutions.
Topics in legal philosophy tend to be more abstract than related
topics in political philosophy and applied ethics. For example,
whereas the question of how properly to interpret the U.S.
Constitution belongs to democratic theory (and hence falls under the
heading of political philosophy), the analysis of legal interpretation
falls under the heading of legal philosophy. Likewise, whereas the
question of whether capital punishment is morally permissible falls
under the heading of applied ethics, the question of whether the
institution of punishment can be justified falls under the heading of
legal philosophy.
There are roughly three categories into which the topics of legal
philosophy fall: analytic jurisprudence, normative jurisprudence, and
critical theories of law. Analytic jurisprudence involves providing an
analysis of the essence of law so as to understand what differentiates
it from other systems of norms, such as ethics. Normative
jurisprudence involves the examination of normative, evaluative, and
otherwise prescriptive issues about the law, such as restrictions on
freedom, obligations to obey the law, and the grounds for punishment.
Finally, critical theories of law, such as critical legal studies and
feminist jurisprudence, challenge more traditional forms of legal
philosophy.
1. Analytic Jurisprudence
The principal objective of analytic jurisprudence has traditionally
been to provide an account of what distinguishes law as a system of
norms from other systems of norms, such as ethical norms. As John
Austin describes the project, analytic jurisprudence seeks "the
essence or nature which is common to all laws that are properly so
called" (Austin 1995, p. 11). Accordingly, analytic jurisprudence is
concerned with providing necessary and sufficient conditions for the
existence of law that distinguish law from non-law.
While this task is usually interpreted as an attempt to analyze the
concepts of law and legal system, there is some confusion as to both
the value and character of conceptual analysis in philosophy of law.
As Brian Leiter (1998) points out, philosophy of law is one of the few
philosophical disciplines that takes conceptual analysis as its
principal concern; most other areas in philosophy have taken a
naturalistic turn, incorporating the tools and methods of the
sciences. To clarify the role of conceptual analysis in law, Brian Bix
(1995) distinguishes a number of different purposes that can be served
by conceptual claims:
1. to track linguistic usage;
2. to stipulate meanings;
3. to explain what is important or essential about a class of objects; and
4. to establish an evaluative test for the concept-word.
Bix takes conceptual analysis in law to be primarily concerned with (3) and (4).
In any event, conceptual analysis of law remains an important, if
controversial, project in contemporary legal theory. Conceptual
theories of law can be divided into two main headings: (a) those that
affirm there is a conceptual relation between law and morality and (b)
those that deny that there is such a relation. Nevertheless, Ronald
Dworkin's view is often characterized as a third theory partly because
it is not clear where he stands on the question of whether there is a
conceptual relation between law and morality.
a. Natural Law Theory
All forms of natural law theory subscribe to the Overlap Thesis, which
is that there is a necessary relation between the concepts of law and
morality. According to this view, then, the concept of law cannot be
fully articulated without some reference to moral notions. Though the
Overlap Thesis may seem unambiguous, there are a number of different
ways in which it can be interpreted.
The strongest form of the Overlap Thesis underlies the classical
naturalism of St. Thomas Aquinas and William Blackstone. As Blackstone
describes the thesis:
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 (1979, p. 41).
In this passage, Blackstone articulates the two claims that constitute
the theoretical core of classical naturalism: 1) there can be no
legally valid standards that conflict with the natural law; and 2) all
valid laws derive what force and authority they have from the natural
law. On this view, to paraphrase Augustine, an unjust law is no law at
all.
Related to Blackstone's classical naturalism is the neo-naturalism of
John Finnis (1980). Finnis believes that the naturalism of Aquinas and
Blackstone should not be construed as a conceptual account of the
existence conditions for law. According to Finnis (see also Bix,
1996), the classical naturalists were not concerned with giving a
conceptual account of legal validity; rather they were concerned with
explaining the moral force of law: "the principles of natural law
explain the obligatory force (in the fullest sense of "obligation") of
positive laws, even when those laws cannot be deduced from those
principles" (Finnis 1980, pp. 23-24). On Finnis's view of the Overlap
Thesis, the essential function of law is to provide a justification
for state coercion. Accordingly, an unjust law can be legally valid,
but cannot provide an adequate justification for use of the state
coercive power and is hence not obligatory in the fullest sense; thus,
an unjust law fails to realize the moral ideals implicit in the
concept of law. An unjust law, on this view, is legally binding, but
is not fully law.
Lon Fuller (1964) rejects the idea that there are necessary moral
constraints on the content of law. On Fuller's view, law is
necessarily subject to a procedural morality consisting of eight
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.
On Fuller's view, no system of rules that fails minimally to satisfy
these principles of legality can achieve law's essential purpose of
achieving social order through the use of rules that guide behavior. A
system of rules that fails to satisfy (P2) or (P4), for example,
cannot guide behavior because people will not be able to determine
what the rules require. Accordingly, Fuller concludes that his eight
principles are "internal" to law in the sense that they are built into
the existence conditions for law: "A total failure in any one of these
eight directions does not simply result in a bad system of law; it
results in something that is not properly called a legal system at
all" (1964, p. 39).
b. Legal Positivism
Opposed to all forms of naturalism is legal positivism, which is
roughly constituted by three theoretical commitments: (i) the Social
Fact Thesis, (ii) the Conventionality Thesis, and (iii) the
Separability Thesis. The Social Fact Thesis (which is also known as
the Pedigree Thesis) asserts that it is a necessary truth that legal
validity is ultimately a function of certain kinds of social facts.
The Conventionality Thesis emphasizes law's conventional nature,
claiming that the social facts giving rise to legal validity are
authoritative in virtue of some kind of social convention. The
Separability Thesis, at the most general level, simply denies
naturalism's Overlap Thesis; according to the Separability Thesis,
there is no conceptual overlap between the notions of law and
morality.
i. The Conventionality Thesis
According to the Conventionality Thesis, it is a conceptual truth
about law that legal validity can ultimately be explained in terms of
criteria that are authoritative in virtue of some kind of social
convention. Thus, for example, H.L.A. Hart (1996) believes the
criteria of legal validity are contained in a rule of recognition that
sets forth rules for creating, changing, and adjudicating law. On
Hart's view, the rule of recognition is authoritative in virtue of a
convention among officials to regard its criteria as standards that
govern their behavior as officials. While Joseph Raz does not appear
to endorse Hart's view about a master rule of recognition containing
the criteria of validity, he also believes the validity criteria are
authoritative only in virtue of a convention among officials.
ii. The Social Fact Thesis
The Social Fact Thesis asserts that legal validity is a function of
certain social facts. Borrowing heavily from Jeremy Bentham, John
Austin (1995) argues that the principal distinguishing feature of a
legal system is the presence of a sovereign who is habitually obeyed
by most people in the society, but not in the habit of obeying any
determinate human superior. On Austin's view, a rule R is legally
valid (that is, is a law) in a society S if and only if R is commanded
by the sovereign in S and is backed up with the threat of a sanction.
The relevant social fact that confers validity, on Austin's view, is
promulgation by a sovereign willing to impose a sanction for
noncompliance.
Hart takes a different view of the Social Fact Thesis. Hart believes
that Austin's theory accounts, at most, for one kind of rule: primary
rules that require or prohibit certain kinds of behavior. On Hart's
view, Austin overlooked the presence of other primary rules that
confer upon citizens the power to create, modify, and extinguish
rights and obligations in other persons. As Hart points out, the rules
governing the creation of contracts and wills cannot plausibly be
characterized as restrictions on freedom that are backed by the threat
of a sanction.
Most importantly, however, Hart argues Austin overlooks the existence
of secondary meta-rules that have as their subject matter the primary
rules themselves and distinguish full-blown legal systems from
primitive systems of law:
[Secondary rules] may all be said to be on a different level from
the primary rules, for they are all about such rules; in the sense
that while primary rules are concerned with the actions that
individuals must or must not do, these secondary rules are all
concerned with the primary rules themselves. They specify the way in
which the primary rules may be conclusively ascertained, introduced,
eliminated, varied, and the fact of their violation conclusively
determined (Hart 1994, p. 92).
Hart distinguishes three types of secondary rules that mark the
transition from primitive forms of law to full-blown legal systems:
(1) the rule of recognition, which "specif[ies] some feature or
features possession of which by a suggested rule is taken as a
conclusive affirmative indication that it is a rule of the group to be
supported by the social pressure it exerts" (Hart 1994, p. 92); (2)
the rule of change, which enables a society to add, remove, and modify
valid rules; and (3) the rule of adjudication, which provides a
mechanism for determining whether a valid rule has been violated. On
Hart's view, then, every society with a full-blown legal system
necessarily has a rule of recognition that articulates criteria for
legal validity that include provisions for making, changing and
adjudicating law. Law is, to use Hart's famous phrase, "the union of
primary and secondary rules" (Hart 1994, p. 107).
According to Hart's view of the Social Fact Thesis, then, a
proposition P is legally valid in a society S if and only if it
satisfies the criteria of validity contained in a rule of recognition
that is binding in S. As we have seen, the Conventionality Thesis
implies that a rule of recognition is binding in S only if there is a
social convention among officials to treat it as defining standards of
official behavior. Thus, on Hart's view, "[the] rules of recognition
specifying the criteria of legal validity and its rules of change and
adjudication must be effectively accepted as common public standards
of official behaviour by its officials" (Hart 1994, p. 113).
iii. The Separability Thesis
The final thesis comprising the foundation of legal positivism is the
Separability Thesis. In its most general form, the Separability Thesis
asserts that law and morality are conceptually distinct. This abstract
formulation can be interpreted in a number of ways. For example, Klaus
F¸þer (1996) interprets it as making a meta-level claim that the
definition of law must be entirely free of moral notions. This
interpretation implies that any reference to moral considerations in
defining the related notions of law, legal validity, and legal system
is inconsistent with the Separability Thesis.
More commonly, the Separability Thesis is interpreted as making only
an object-level claim about the existence conditions for legal
validity. As Hart describes it, the Separability Thesis is no more
than the "simple contention that it is in no sense a necessary truth
that laws reproduce or satisfy certain demands of morality, though in
fact they have often done so" (Hart 1994, pp. 181-82). Insofar as the
object-level interpretation of the Separability Thesis denies it is a
necessary truth that there are moral constraints on legal validity, it
implies the existence of a possible legal system in which there are no
moral constraints on legal validity.
Though all positivists agree there are possible legal systems without
moral constraints on legal validity, there are conflicting views on
whether there are possible legal systems with such constraints.
According to inclusive positivism (also known as incorporationism and
soft positivism), it is possible for a society's rule of recognition
to incorporate moral constraints on the content of law. Prominent
inclusive positivists include Jules Coleman and Hart, who maintains
that "the rule of recognition may incorporate as criteria of legal
validity conformity with moral principles or substantive values … such
as the Sixteenth or Nineteenth Amendments to the United States
Constitution respecting the establishment of religion or abridgements
of the right to vote" (Hart 1994, p. 250).
In contrast, exclusive positivism (also called hard positivism) denies
that a legal system can incorporate moral constraints on legal
validity. Exclusive positivists like Raz (1979) subscribe to the
Source Thesis, according to which the existence and content of law can
always be determined by reference to its sources without recourse to
moral argument. On this view, the sources of law include both the
circumstances of its promulgation and relevant interpretative
materials, such as court cases involving its application.
c. Ronald Dworkin's Third Theory
Ronald Dworkin rejects positivism's Social Fact Thesis on the ground
that there are some legal standards the authority of which cannot be
explained in terms of social facts. In deciding hard cases, for
example, judges often invoke moral principles that Dworkin believes do
not derive their legal authority from the social criteria of legality
contained in a rule of recognition (Dworkin 1977, p. 40).
Nevertheless, since judges are bound to consider such principles when
relevant, they must be characterized as law. Thus, Dworkin concludes,
"if we treat principles as law we must reject the positivists' first
tenet, that the law of a community is distinguished from other social
standards by some test in the form of a master rule" (Dworkin 1977, p.
44).
Dworkin believes adjudication is and should be interpretive: "judges
should decide hard cases by interpreting the political structure of
their community in the following, perhaps special way: by trying to
find the best justification they can find, in principles of political
morality, for the structure as a whole, from the most profound
constitutional rules and arrangements to the details of, for example,
the private law of tort or contract" (Dworkin 1982, p. 165). There
are, then, two elements of a successful interpretation. First, since
an interpretation is successful insofar as it justifies the particular
practices of a particular society, the interpretation must fit with
those practices in the sense that it coheres with existing legal
materials defining the practices. Second, since an interpretation
provides a moral justification for those practices, it must present
them in the best possible moral light. Thus, Dworkin argues, a judge
should strive to interpret a case in roughly the following way:
A thoughtful judge might establish for himself, for example, a
rough "threshold" of fit which any interpretation of data must meet in
order to be "acceptable" on the dimension of fit, and then suppose
that if more than one interpretation of some part of the law meets
this threshold, the choice among these should be made, not through
further and more precise comparisons between the two along that
dimension, but by choosing the interpretation which is "substantively"
better, that is, which better promotes the political ideals he thinks
correct (Dworkin 1982, p. 171).
Accordingly, on Dworkin's view, the legal authority of a binding
principle derives from the contribution it makes to the best moral
justification for a society's legal practices considered as a whole.
Thus, a legal principle maximally contributes to such a justification
if and only if it satisfies two conditions:
1. the principle coheres with existing legal materials; and
2. the principle is the most morally attractive standard that satisfies (1).
The correct legal principle is the one that makes the law the moral
best it can be.
In later writings, Dworkin expands the scope of his "constructivist"
view beyond adjudication to encompass the realm of legal theory.
Dworkin distinguishes conversational interpretation from
artistic/creative interpretation and argues that the task of
interpreting a social practice is more like artistic interpretation:
The most familiar occasion of interpretation is conversation. We
interpret the sounds or marks another person makes in order to decide
what he has said. Artistic interpretation is yet another: critics
interpret poems and plays and paintings in order to defend some view
of their meaning or theme or point. The form of interpretation we are
studying-the interpretation of a social practice-is like artistic
interpretation in this way: both aim to interpret something created by
people as an entity distinct from them, rather than what people say,
as in conversational interpretation" (Dworkin 1986, p. 50).
Artistic interpretation, like judicial interpretation, is constrained
by the dimensions of fit and justification: "constructive
interpretation is a matter of imposing purpose on an object or
practice in order to make of it the best possible example of the form
or genre to which it is taken to belong" (Dworkin 1986, p. 52).
On Dworkin's view, the point of any general theory of law is to
interpret a very complex set of related social practices that are
"created by people as an entity distinct from them"; for this reason,
Dworkin believes the project of putting together a general theory of
law is inherently constructivist:
General theories of law must be abstract because they aim to
interpret the main point and structure of legal practice, not some
particular part or department of it. But for all their abstraction,
they are constructive interpretations: they try to show legal practice
as a whole in its best light, to achieve equilibrium between legal
practice as they find it and the best justification of that practice.
So no firm line divides jurisprudence from adjudication or any other
aspect of legal practice (Dworkin 1986, p. 90).
Indeed, so tight is the relation between jurisprudence and
adjudication, according to Dworkin, that jurisprudence is no more than
the most general part of adjudication; thus, Dworkin concludes, "any
judge's opinion is itself a piece of legal philosophy" (Dworkin 1986,
p. 90).
Accordingly, Dworkin rejects not only positivism's Social Fact Thesis,
but also what he takes to be its underlying presuppositions about
legal theory. Hart distinguishes two perspectives from which a set of
legal practices can be understood. A legal practice can be understood
from the "internal" point of view of the person who accepts that
practice as providing legitimate guides to conduct, as well as from
the "external" point of view of the observer who wishes to understand
the practice but does not accept it as being authoritative or
legitimate.
Hart understands his theory of law to be both descriptive and general
in the sense that it provides an account of fundamental features
common to all legal systems-which presupposes a point of view that is
external to all legal systems. For this reason, he regards his project
as "a radically different enterprise from Dworkin's conception of
legal theory (or 'jurisprudence' as he often terms it) as in part
evaluative and justificatory and as 'addressed to a particular legal
culture', which is usually the theorist's own and in Dworkin's case is
that of Anglo-American law" (Hart 1994, p. 240).
These remarks show Hart believes Dworkin's theoretical objectives are
fundamentally different from those of positivism, which, as a theory
of analytic jurisprudence, is largely concerned with conceptual
analysis. For his part, Dworkin conceives his work as conceptual but
not in the same sense that Hart regards his work:
We all-at least all lawyers-share a concept of law and of legal
right, and we contest different conceptions of that concept.
Positivism defends a particular conception, and I have tried to defend
a competing conception. We disagree about what legal rights are in
much the same way as we philosophers who argue about justice disagree
about what justice is. I concentrate on the details of a particular
legal system with which I am especially familiar, not simply to show
that positivism provides a poor account of that system, but to show
that positivism provides a poor conception of the concept of a legal
right (Dworkin 1977, 351-52).
These differences between Hart and Dworkin have led many legal
philosophers, most recently Bix (1996), to suspect that they are not
really taking inconsistent positions at all. Accordingly, there
remains an issue as to whether Dworkin's work should be construed as
falling under the rubric of analytic jurisprudence.
2. Normative Jurisprudence
Normative jurisprudence involves normative, evaluative, and otherwise
prescriptive questions about the law. Here we will examine three key
issues: (a) when and to what extent laws can restrict the freedom of
citizens, (b) the nature of one's obligation to obey the law, and (c)
the justification of punishment by law.
a. Freedom and the Limits of Legitimate Law
Laws limit human autonomy by restricting freedom. Criminal laws, for
example, remove certain behaviors from the range of behavioral options
by penalizing them with imprisonment and, in some cases, death.
Likewise, civil laws require people to take certain precautions not to
injure others and to honor their contracts. Given that human autonomy
deserves prima facie moral respect, the question arises as to what are
the limits of the state's legitimate authority to restrict the freedom
of its citizens.
John Stuart Mill provides the classic liberal answer in the form of
the harm principle:
[T]he sole end for which mankind are warranted, individually or
collectively, in interfering with the liberty of action of any of
their number is self-protection. The only purpose for which power can
rightfully be exercised over any member of a civilised community
against his will is to prevent harm to others. His own good, either
physical or moral, is not a sufficient warrant. Over himself, over his
own body and mind, the individual is sovereign (Mill 1906, pp. 12-13).
While Mill left the notion of harm underdeveloped, he is most
frequently taken to mean only physical harms and more extreme forms of
psychological harm.
Though Mill's view—or something like it—enjoys currency among the
public, it has generated considerable controversy among philosophers
of law and political philosophers. Many philosophers believe that Mill
understates the limits of legitimate state authority over the
individual, claiming that law may be used to enforce morality, to
protect the individual from herself, and in some cases to protect
individuals from offensive behavior.
i. Legal Moralism
Legal moralism is the view that the law can legitimately be used to
prohibit behaviors that conflict with society's collective moral
judgments even when those behaviors do not result in physical or
psychological harm to others. According to this view, a person's
freedom can legitimately be restricted simply because it conflicts
with society's collective morality; thus, legal moralism implies that
it is permissible for the state to use its coercive power to enforce
society's collective morality.
The most famous legal moralist is Patrick Devlin, who argues that a
shared morality is essential to the existence of a society:
[I]f men and women try to create a society in which there is no
fundamental agreement about good and evil they will fail; if, having
based it on common agreement, the agreement goes, the society will
disintegrate. For society is not something that is kept together
physically; it is held by the invisible bonds of common thought. If
the bonds were too far relaxed the members would drift apart. A common
morality is part of the bondage. The bondage is part of the price of
society; and mankind, which needs society, must pay its price. (Devlin
1965, p. 10).
Insofar as human beings cannot lead a meaningful existence outside of
society, it follows, on Devlin's view, that the law can be used to
preserve the shared morality as a means of preserving society itself.
H.L.A. Hart (1963) points out that Devlin overstates the extent to
which preservation of a shared morality is necessary to the continuing
existence of a society. Devlin attempts to conclude from the necessity
of a shared social morality that it is permissible for the state to
legislate sexual morality (in particular, to legislate against
same-sex sexual relations), but Hart argues it is implausible to think
that "deviation from accepted sexual morality, even by adults in
private, is something which, like treason, threatens the existence of
society" (Hart 1963, p. 50). While enforcement of certain social norms
protecting life, safety, and property are likely essential to the
existence of a society, a society can survive a diversity of behavior
in many other areas of moral concern-as is evidenced by the
controversies in the U.S. surrounding abortion and homosexuality.
ii. Legal Paternalism
Legal paternalism is the view that it is permissible for the state to
legislate against what Mill calls "self-regarding actions" when
necessary to prevent individuals from inflicting physical or severe
emotional harm on themselves. As Gerald Dworkin describes it, a
paternalist interference is an "interference with a person's liberty
of action justified by reasons referring exclusively to the welfare,
good, happiness, needs, interests or values of the person being
coerced" (G. Dworkin 1972, p. 65). Thus, for example, a law requiring
use of a helmet when riding a motorcycle is a paternalistic
interference insofar as it is justified by concerns for the safety of
the rider.
Dworkin argues that Mill's view that a person "cannot rightfully be
compelled to do or forbear because it will be better for him" (Mill
1906, p. 13) precludes paternalistic legislation to which fully
rational individuals would agree. According to Dworkin, there are
goods, such as health and education, that any rational person needs to
pursue her own good-no matter how that good is conceived. Thus,
Dworkin concludes, the attainment of these basic goods can
legitimately be promoted in certain circumstances by using the state's
coercive force.
Dworkin offers a hypothetical consent justification for his limited
legal paternalism. On his view, there are a number of different
situations in which fully rational adults would consent to
paternalistic restrictions on freedom. For example, Dworkin believes a
fully rational adult would consent to paternalistic restrictions to
protect her from making decisions that are "far-reaching, potentially
dangerous and irreversible" (G. Dworkin 1972, p. 80). Nevertheless, he
argues that there are limits to legitimate paternalism: (1) the state
must show that the behavior governed by the proposed restriction
involves the sort of harm that a rational person would want to avoid;
(2) on the calculations of a fully rational person, the potential harm
outweighs the benefits of the relevant behavior; and (3) the proposed
restriction is the least restrictive alternative for protecting
against the harm.
iii. The Offense Principle
Joel Feinberg believes the harm principle does not provide sufficient
protection against the wrongful behaviors of others, as it is
inconsistent with many criminal prohibitions we take for granted as
being justified. If the only legitimate use of the state coercive
force is to protect people from harm caused by others, then statutes
prohibiting public sex are impermissible because public sex might be
offensive but it does not cause harm (in the Millian sense) to others.
Accordingly, Feinberg argues the harm principle must be augmented by
the offense principle, which he defines as follows: "It is always a
good reason in support of a proposed criminal prohibition that it
would probably be an effective way of preventing serious offense (as
opposed to injury or harm) to persons other than the actor, and that
it is probably a necessary means to that end" (Feinberg 1985). By
"offense," Feinberg intends a subjective and objective element: the
subjective element consists in the experience of an unpleasant mental
state (for example, shame, disgust, anxiety, embarrassment); the
objective element consists in the existence of a wrongful cause of
such a mental state.
b. The Obligation to Obey Law
Natural law critics of positivism (for example, Fuller 1958)
frequently complain that if positivism is correct, there cannot be a
moral obligation to obey the law qua law (that is, to obey the law as
such, no matter what the laws are, simply because it is the law). As
Feinberg (1979) puts the point:
The positivist account of legal validity is hard to reconcile with
the [claim] that valid law as such, no matter what its content,
deserves our respect and general fidelity. Even if valid law is bad
law, we have some obligation to obey it simply because it is law. But
how can this be so if a law's validity has nothing to do with its
content?
The idea is this: if what is essential to law is just that there exist
specified recipes for making law, then there cannot be a moral
obligation to obey a rule simply because it is the law.
Contemporary positivists, for the most part, accept the idea that
positivism is inconsistent with an obligation to obey law qua law
(compare Himma 1998), but argue that the mere status of a norm as law
cannot give rise to any moral obligation to obey that norm. While
there might be a moral obligation to obey a particular law because of
its moral content (for example, laws prohibiting murder) or because it
solves a coordination problem (for example, laws requiring people to
drive on the right side of the road), the mere fact that a rule is law
does not provide a moral reason for doing what the law requires.
Indeed, arguments for the existence of even a prima facie obligation
to obey law (that is, an obligation that can be outweighed by
competing obligations) have largely been unsuccessful. Arguments in
favor of an obligation to obey the law roughly fall into four
categories: (1) arguments from gratitude; (2) arguments from fair
play; (3) arguments from implied consent; and (4) arguments from
general utility.
The argument from gratitude begins with the observation that all
persons, even those who are worst off, derive some benefit from the
state's enforcement of the law. On this view, a person who accepts
benefits from another person thereby incurs a duty of gratitude
towards the benefactor. And the only plausible way to discharge this
duty towards the government is to obey its laws. Nevertheless, as
M.B.E. Smith points out (1973, p. 953), "if someone confers benefits
on me without any consideration of whether I want them, and if he does
this in order to advance some purpose other than promotion of my
particular welfare, I have no obligation to be grateful towards him."
Since the state does not give citizens a choice with respect to such
benefits, the mere enjoyment of them cannot give rise to a duty of
gratitude.
John Rawls (1964) argues that there is a moral obligation to obey law
qua law in societies in which there is a mutually beneficial and just
scheme of social cooperation. What gives rise to a moral obligation to
obey law qua law in such societies is a duty of fair play: fairness
requires obedience of persons who intentionally accept the benefits
made available in a society organized around a just scheme of mutually
beneficial cooperation. There are a couple of problems here. First,
Rawls's argument does not establish the existence of a
content-independent obligation to obey law; the obligation arises only
in those societies that institutionalize a just scheme of social
cooperation. Second, even in such societies, citizens are not
presented with a genuine option to refuse those benefits. For example,
I cannot avoid the benefits of laws ensuring clean air. But accepting
benefits one is not in a position to refuse cannot give rise to an
obligation of fair play.
The argument from consent grounds an obligation to obey law on some
sort of implied promise. As is readily evident, we can voluntarily
assume obligations by consenting to them or making a promise. Of
course, most citizens never explicitly promise or consent to obey the
laws; for this reason, proponents of this argument attempt to infer
consent from such considerations as continued residence and acceptance
of benefits from the state. Nevertheless, acceptance of benefits one
cannot decline no more implies consent to obey law than it does duties
of fair play or gratitude. Moreover, the prohibitive difficulties
associated with emigration preclude an inference of consent from
continued residence.
Finally, the argument from general utility grounds the duty to obey
the law in the consequences of universal disobedience. Since,
according to this argument, the consequences of general disobedience
would be catastrophic, it is wrong for any individual to disobey the
law; for no person may disobey the law unless everyone may do so. In
response, Smith points out that this strategy of argument leads to
absurdities: "We will have to maintain, for example, that there is a
prima facie obligation not to eat dinner at five o'clock, for if
everyone did so, certain essential services could not be maintained"
(Smith 1973, p. 966).
c. The Justification of Punishment
Punishment is unique among putatively legitimate acts in that its
point is to inflict discomfort on the recipient; an act that is
incapable of causing a person minimal discomfort cannot be
characterized as a punishment. In most contexts, the commission of an
act for the purpose of inflicting discomfort is morally problematic
because of its resemblance to torture. For this reason, institutional
punishment requires a moral justification sufficient to distinguish it
from other practices of purposely inflicting discomfort on other
people.
Justifications for punishment typically take five forms: (1)
retributive; (2) deterrence; (3) preventive; (4) rehabilitative; and
(5) restitutionary. According to the retributive justification, what
justifies punishing a person is that she committed an offense that
deserves the punishment. On this view, it is morally appropriate that
a person who has committed a wrongful act should suffer in proportion
to the magnitude of her wrongdoing. The problem, however, is that the
mere fact that someone is deserving of punishment does not imply it is
morally permissible for the state to administer punishment; it would
be wrong for me, for example, to punish someone else's child even
though her behavior might deserve it.
In contrast to the retributivist theories that look back to a person's
prior wrongful act as justification for punishment, utilitarian
theories look forward to the beneficial consequences of punishing a
person. There are three main lines of utilitarian reasoning. According
to the deterrence justification, punishment of a wrongdoer is
justified by the socially beneficial effects that it has on other
persons. On this view, punishment deters wrongdoing by persons who
would otherwise commit wrongful acts. The problem with the deterrence
theory is that it justifies punishment of one person on the strength
of the effects that it has on other persons. The idea that it is
permissible to deliberately inflict discomfort on one person because
doing so may have beneficial effects on the behavior of other persons
appears inconsistent with the Kantian principle that it is wrong to
use people as mere means.
The preventive justification argues that incarcerating a person for
wrongful acts is justified insofar as it prevents that person from
committing wrongful acts against society during the period of
incarceration. The rehabilitative justification argues that punishment
is justified in virtue of the effect that it has on the moral
character of the offender. Each of these justifications suffers from
the same flaw: prevention of crime and rehabilitation of the offender
can be achieved without the deliberate infliction of discomfort that
constitutes punishment. For example, prevention of crime might require
detaining the offender, but it does not require detention in an
environment that is as unpleasant as those typically found in prisons.
The restitutionary justification focuses on the effect of the
offender's wrongful act on the victim. Other theories of punishment
conceptualize the wrongful act as an offense against society; the
restitutionary theory sees wrongdoing as an offense against the
victim. Thus, on this view, the principal purpose of punishment must
be to make the victim whole to the extent that this can be done: "The
point is not that the offender deserves to suffer; it is rather that
the offended party desires compensation" (Barnett 1977, p. 289).
Accordingly, a criminal convicted of wrongdoing should be sentenced to
compensate her victim in proportion to the victim's loss. The problem
with the restitutionary theory is that it fails to distinguish between
compensation and punishment. Compensatory objectives focus on the
victim, while punitive objectives focus on the offender.
3. Critical Theories of Law
a. Legal Realism
The legal realist movement was inspired by John Chipman Gray and
Oliver Wendall Holmes and reached its apex in the 1920s and 30s
through the work of Karl Llewellyn, Jerome Frank, and Felix Cohen. The
realists eschewed the conceptual approach of the positivists and
naturalists in favor of an empirical analysis that sought to show how
practicing judges really decide cases (see Leiter 1998). The realists
were deeply skeptical of the ascendant notion that judicial
legislation is a rarity. While not entirely rejecting the idea that
judges can be constrained by rules, the realists maintained that
judges create new law through the exercise of lawmaking discretion
considerably more often than is commonly supposed. On their view,
judicial decision is guided far more frequently by political and moral
intuitions about the facts of the case (instead of by legal rules)
than theories like positivism and naturalism acknowledge.
As an historical matter, legal realism arose in response to legal
formalism, a particular model of legal reasoning that assimilates
legal reasoning to syllogistic reasoning. According to the formalist
model, the legal outcome (that is, the holding) logically follows from
the legal rule (major premise) and a statement of the relevant facts
(minor premise). Realists believe that formalism understates judicial
lawmaking abilities insofar as it represents legal outcomes as
entailed syllogistically by applicable rules and facts. For if legal
outcomes are logically implied by propositions that bind judges, it
follows that judges lack legal authority to reach conflicting
outcomes.
Legal realism can roughly be characterized by the following claims:
1. the class of available legal materials is insufficient to
logically entail a unique legal outcome in most cases worth litigating
at the appellate level (the Local Indeterminacy Thesis);
2. in such cases, judges make new law in deciding legal disputes
through the exercise of a lawmaking discretion (the Discretion
Thesis); and
3. judicial decisions in indeterminate cases are influenced by the
judge's political and moral convictions, not by legal considerations.
Though (3) is logically independent of (1) and (2), (1) seems to imply
(2): insofar as judges decide legally indeterminate cases, they must
be creating new law.
It is worth noting the relations between legal realism, formalism, and
positivism. While formalism is often thought to be entailed by
positivism, it turns out that legal realism is not only consistent
with positivism, but also presupposes the truth of all three of
positivism's core theses. Indeed, the realist acknowledges that law is
essentially the product of official activity, but believes that
judicial lawmaking occurs more frequently than is commonly assumed.
But the idea that law is essentially the product of official activity
presupposes the truth of positivism's Conventionality, Social Fact,
and Separability theses. Though the preoccupations of the realists
were empirical (that is, attempting to identify the psychological and
sociological factors influencing judicial decision-making), their
implicit conceptual commitments were decidedly positivistic in flavor.
b. Critical Legal Studies
The critical legal studies (CLS) movement attempts to expand the
radical aspects of legal realism into a Marxist critique of mainstream
liberal jurisprudence. CLS theorists believe the realists understate
the extent of indeterminacy; whereas the realists believe that
indeterminacy is local in the sense that it is confined to a certain
class of cases, CLS theorists argue that law is radically (or
globally) indeterminate in the sense that the class of available legal
materials rarely, if ever, logically/causally entails a unique
outcome.
CLS theorists emphasize the role of ideology in shaping the content of
the law. On this view, the content of the law in liberal democracies
necessarily reflects "ideological struggles among social factions in
which competing conceptions of justice, goodness, and social and
political life get compromised, truncated, vitiated, and adjusted"
(Altman 1986, p. 221). The inevitable outcome of such struggles, on
this view, is a profound inconsistency permeating the deepest layers
of the law. It is this pervasive inconsistency that gives rise to
radical indeterminacy in the law. For insofar as the law is
inconsistent, a judge can justify any of a number of conflicting
outcomes.
At the heart of the CLS critique of liberal jurisprudence is the idea
that radical indeterminacy is inconsistent with liberal conceptions of
legitimacy. According to these traditional liberal conceptions, the
province of judges is to interpret, and not make, the law. For, on
this view, democratic ideals imply that lawmaking must be left to
legislators who, unlike appointed judges, are accountable to the
electorate. But if law is radically indeterminate, then judges nearly
always decide cases by making new law, which is inconsistent with
liberal conceptions of the legitimate sources of lawmaking authority.
c. Law and Economics
The law and economics movement argues for the value of economic
analysis in the law both as a description about how courts and
legislators do behave and as a prescription for how such officials
should behave. The legal economists, led by Richard Posner, argue that
the content of many areas of the common law can be explained in terms
of its tendency to maximize preferences:
[M]any areas of law, especially the great common law fields of
property, torts, crimes, and contracts, bear the stamp of economic
reasoning. It is not a refutation that few judicial opinions contain
explicit references to economic concepts. Often the true grounds of
decision are concealed rather than illuminated by the characteristic
rhetoric of judicial opinions. Indeed, legal education consists
primarily of learning to dig beneath the rhetorical surface to find
those grounds, many of which may turn out to have an economic
character (Posner 1992, p. 23).
Posner subscribes to the so-called efficiency theory of the common
law, according to which "the common law is best (not perfectly)
explained as a system for maximizing the wealth of society" (Posner
1992, p. 23).
More influential than Posner's descriptive claims is his normative
view that law should strive to maximize wealth. According to Posner,
the proper goal of the statutory and common law is to promote wealth
maximization, which can best be done by facilitating the mechanisms of
the free market. Posner's normative view combines elements of
utilitarian analysis with a Kantian respect for autonomy. On the
utilitarian side, markets tend to maximize wealth and the satisfaction
of preferences. In a market transaction with no third-party effects,
wealth is increased because all parties are made better off by the
transaction-otherwise there would be no incentive to consummate the
transaction-and no one is made worse off.
On the Kantian side, the law should facilitate market transactions
because market transactions best reflect autonomous judgments about
the value of individual preferences. At least ideally, individuals
express and realize their preferences through mutually consensual
market transactions consummated from positions of equal bargaining
power. Thus, market transactions tend, ideally, to be both efficient
(because they tend to maximize wealth without harmful third-party
effects) and just (because all parties are consenting).
d. Outsider Jurisprudence
So-called "outsider jurisprudence" is concerned with providing an
analysis of the ways in which law is structured to promote the
interests of white males and to exclude females and persons of color.
For example, one principal objective of feminist jurisprudence is to
show how patriarchal assumptions have shaped the content of laws in a
wide variety of areas: property, contract, criminal law,
constitutional law, and the law of civil rights. Additionally,
feminist scholars challenge traditional ideals of judicial
decision-making according to which judges decide legal disputes by
applying neutral rules in an impartial and objective fashion.
Feminists have, of course, always questioned whether it is possible
for judges to achieve an objective and impartial perspective, but now
question whether the traditional model is even desirable.
Critical race theory is likewise concerned to point up the way in
which assumptions of white supremacy have shaped the content of the
law at the expense of persons of color. Additionally, critical race
theorists show how the experience, concerns, values, and perspectives
of persons of color are systematically excluded from mainstream
discourse among practicing lawyers, judges, and legislators. Finally,
such theorists attempt to show how assumptions about race are built
into most liberal theories of law.
4. References and Further Reading
* Andrew Altman (1986), "Legal Realism, Critical Legal Studies,
and Dworkin," Philosophy and Public Affairs, vol. 15, no. 2, pp.
205-236.
* Thomas Aquinas (1988), On Law, Morality and Politics
(Indianapolis: Hackett Publishing Co.).
* John Austin (1977), Lectures on Jurisprudence and the Philosophy
of Positive Law (St. Clair Shores, MI: Scholarly Press.
* John Austin (1995), The Province of Jurisprudence Determined
(Cambridge: Cambridge University Press).
* Randy E. Barnett (1977), "Restitution: A New Paradigm of
Criminal Justice," Ethics, vol. 87, no. 4, pp. 279-301.
* Jeremy Bentham (1988), A Fragment of Government (Cambridge:
Cambridge University Press).
* Jeremy Bentham (1970), Of Laws In General (London: Athlone Press).
* Brian Bix (1995), "Conceptual Questions and Jurisprudence,"
Legal Theory, vol. 1, no. 4 (December), pp. 465-479.
* Brian Bix (1996a), Jurisprudence: Theory and Context (Boulder,
CO: Westview Press).
* Brian Bix (1996b), "Natural Law Theory," in Dennis M. Patterson
(ed.), A Companion to Philosophy of Law and Legal Theory (Cambridge:
Blackwell Publishing Co.).
* William Blackstone (1979), Commentaries on the Law of England
(Chicago: The University of Chicago Press).
* Jules L. Coleman (1989), "On the Relationship Between Law and
Morality," Ratio Juris, vol. 2, no. 1, pp. 66-78.
* Jules L. Coleman (1982), "Negative and Positive Positivism," 11
Journal of Legal Studies vol. 139, no. 1, pp. 139-164.
* Jules L. Coleman (1996), "Authority and Reason," in Robert P.
George, The Autonomy of Law: Essays on Legal Positivism (Oxford:
Clarendon Press), pp. 287-319.
* Jules L. Coleman (1998), "Incorporationism, Conventionality and
The Practical Difference Thesis," Legal Theory, vol. 4, no. 4, pp.
381-426.
* Jules L. Coleman and Jeffrie Murphy (1990), Philosophy of Law
(Boulder, CO: Westview Press).
* Kimberle Crenshaw, Neil Gotanda, Gary Peller, and Kendall
Thomas, eds. (1995), Critical Race Theory: The Key Writings That
Formed the Movement (New York: The New Press).
* Patrick Devlin (1965), The Enforcement of Morals (Oxford: Oxford
University Press).
* Gerald Dworkin (1972), "Paternalism," The Monist, vol. 56, pp. 64-84.
* Ronald Dworkin (1978), Taking Rights Seriously (Cambridge:
Harvard University Press).
* Ronald Dworkin (1982), "'Natural' Law Revisited," University of
Florida Law Review vol. 34, no. 2, pp. 165-188.
* Ronald Dworkin (1986), Law's Empire (Cambridge: Harvard University Press).
* Joel Feinberg (1985), Offense to Others (Oxford: Oxford University Press).
* Joel Feinberg (1979), "Civil Disobedience in the Modern World,"
Humanities in Review, vol. 2, pp. 37-60.
* John Finnis (1980), Natural Law and Natural Rights (Oxford:
Clarendon Press).
* William Fisher, Morton Horovitz, and Thomas Reed, eds. (1993),
American Legal Realism (New York: Oxford University Press).
* Jerome Frank (1930), Law and the Modern Mind (New York:
Brentano's Publishing).
* Lon L. Fuller (1964), The Morality of Law (New Haven, CT: Yale
University Press).
* Lon L. Fuller (1958), "Positivism and Fidelity to Law," Harvard
Law Review, vol. 71, no. 4, pp. 630-672 .
* Klaus Füßer (1996), "Farewell to 'Legal Positivism': The
Separation Thesis Unravelling," in Robert P. George, The Autonomy of
Law: Essays on Legal Positivism (Oxford: Clarendon Press), pp.
119-162.
* John Chipman Gray (1921), The Nature and Source of Law (New
York: Macmillan).
* Kent Greenawalt (1987), Conflicts of Law and Morality (Oxford:
Clarendon Press).
* H.L.A. Hart (1994), The Concept of Law, 2nd Edition (Oxford:
Oxford University Press).
* H.L.A. Hart (1983), Essays in Jurisprudence and Philosophy
(Oxford: Clarendon Press).
* H.L.A. Hart (1963), Law, Liberty and Morality (Oxford: Oxford
University Press).
* Kenneth Einar Himma (1998), "Positivism, Naturalism, and the
Obligation to Obey Law," Southern Journal of Philosophy, vol. 36, no.
2, pp. 145-161.
* Oliver Wendall Holmes (1898), "The Path of the Law," Harvard Law
Review, vol. 110, no. 5, pp. 991-1009 .
* Brian Leiter (1998), "Naturalism and Naturalized Jurisprudence,"
in Brian Bix (ed.), Analyzing Law: New Essays in Legal Theory (Oxford:
Clarendon Press).
* Brian Leiter, "Legal Realism," in Dennis M. Patterson, ed.
(1996), A Companion to Philosophy of Law and Legal Theory (Oxford:
Blackwell Publishers).
* John Stuart Mill (1906), On Liberty (New York: Alfred A. Knopf).
* Michael Moore (1992), "Law as a Functional Kind," in Robert P.
George (ed.), Natural Law Theories: Contemporary Essays (Oxford:
Clarendon Press).
* Michael Moore, "The Moral Worth of Retribution," in Ferdinand
Schoeman, ed. (1987), Responsibility, Character, and the Emotions
(Cambridge: Cambridge University Press).
* Richard Posner (1992), Economic Analysis of Law, 4th Edition
(Boston: Little, Brown, and Company).
* John Rawls (1964), "Legal Obligation and the Duty of Fair Play,"
in Sidney Hook (ed.), Law and Philosophy (New York: New York
University Press), pp. 3-18.
* Joseph Raz (1979), The Authority of Law: Essays on Law and
Morality (Oxford: Clarendon Press).
* Joseph Raz (1980), The Concept of a Legal System: An
Introduction to the Theory of Legal Systems, Second Edition (Oxford:
Clarendon Press).
* Roger Shiner (1992), Norm and Nature (Oxford: Clarendon Press).
* M.B.E. Smith (1973), "Do We have a Prima Facie Obligation to
Obey the Law," 82 Yale Law Journal 950-976.
* Patricia Smith, ed. (1993), Feminist Jurisprudence (Oxford:
Oxford University Press).
* C.L. Ten (1987), Crime, Guilt, and Punishment (Oxford: Oxford
University Press).
* W.J. Waluchow (1994), Inclusive Legal Positivism (Oxford:
Clarendon Press).
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