The Nature of Law

“The/A Standard Story”

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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”

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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)

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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

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• 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

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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]”

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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”

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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

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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

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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.

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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)

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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

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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.

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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

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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

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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

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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]

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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

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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

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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”)

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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)

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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)?

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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

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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

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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.

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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

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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)

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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

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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”

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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 rule-governed 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

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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

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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

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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

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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?)

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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)

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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”

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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

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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

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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

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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

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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)

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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