Unit 1

The Concept of Law

What is a Commonplace?

The set of everyday truths about a given subject matter providing us a shared subject matter for inquiry.

What Are Our Commonplaces About Law?

The three commonplaces about law around which philosophy of law revolves are these: law is a social phenomenon, law is authoritative, and law is for the common good.

Law is a Social Phenomenon

Its existence is always a matter of social fact.

What makes a fact a social fact, and what distinguishes social facts from other sorts of facts.

Social facts are those subjective facts that concern interaction between subjects – facts about subjects, their beliefs, desires, objectives, aims, choices, points of view, insofar as those beliefs, desires, and so forth make reference to other subjects.

Law is a Social Phenomenon

To say that ‘‘law is authoritative’’ is a commonplace is to say that we include among the criteria for law that it serve a certain role, that of decider of certain questions within a certain domain.

Law is authority over action, what is sometimes called ‘‘practical’’ authority.

Law is Authoritative

An authority’s command is not just to be considered seriously; it is to be obeyed. If an authority is operating within its proper domain, its commands are the final deciders of the issues that it chooses to issue orders about. Its commands give decisive reasons for compliance.

Law is Authoritative

It is a commonplace that law is, in some sense, authoritative.

The law does not request; it commands. Its norms are rules; its dictates are deemed obligatory; those that violate those norms are deemed guilty.

Law is Authoritative

Law is for the Common Good

The commonplace that law is for the common good is supposed to give some sense of the common opinion about the aims of law.

To say that law is for the common good is to say that law is supposed to be justifiable not just from the point of view of some privileged or unprivileged class, but to all those living under it.

Law is not supposed to be something that benefits some class of persons, but is at best a nuisance and at worst a burden or awful affliction to the rest.

Law is for the Common Good

How should we interpret this vague notion of the common good?

What are the values included within it that are the appropriate objectives of legal systems?

What are the constraints that law must honor in pursuit of these objectives?

And how can the features of the ordinary legal systems with which we are familiar be assessed in terms of the common good?

Law is for the Common Good

Basic Austinianism

John Austin holds, that where there is law, there are patterns of commanding and obeying.

That is to say: if you don’t have a situation in which people are telling other people what to do and the other people are going along with it, you do not have law.

So the most obvious place to look to provide an account of the social facts involved in law is the pattern of commanding and obeying that is essential for the existence of law.

Basic Austinianism

Law is, in Austin’s view, a kind of command, one that is general rather than specific to a given occasion.

Command itself calls for conceptualanalysis, and in Austin’s view, command is to be analyzed as an expression of one’s wish or intention that another act a certain way.

Basic Austinianism

But not just any expression of an intention counts as a command: it is only the expressed intention of a superior who has the capacity and the willingness to inflict some evil (Austin calls it a ‘‘sanction’’) in the absence of compliance that constitutes a command.

Basic Austinianism

When these conditions for commanding are met, then when one has been given a command one is obliged, or duty-bound, to comply with it.

Basic Austinianism

Defined the “sovereign” as a person who receives habitual obedience from the bulk of the population but who does not habitually obey any other earthly person or institution.

Austin separated or distinguished law from religion, morality, and custom.

Basic Austinianism

We can summarize Austin’s view, then, as the position that law consists in general commands issued by sovereigns to their subjects.

Basic Austinianism

It is extraordinarily common, Austin notes, to find law that is imprudent, stupid, pointless, outdated.

Austin thinks that it is a plain matter of social fact that there can be laws the existence and following of which do not serve the common good.

Basic Austinianism

How, then, can Austin accommodate the commonplace that law is for the common good?

He accommodates it by treating it just as a straightforward moral thesis about how law ought to be.

Basic Austinianism

What law is is entirely a matter of social fact, depending on who has power and who has issued what commands.

What law ought to be is, Austin insists, a different question.

Basic Austinianism

The notion that law consists in commands issued by a sovereign is perhaps natural once we conceive of law as consisting in commands.

Basic Austinianism

If we conceive of law as consisting in commands, then it is natural to suppose that we must identify some party as the commander, the one who issues the commands. So we are led to the idea that there must be some party, the sovereign, whose ability and willingness to lay down commands and back them with sanctions makes law possible.

Basic Austinianism

The point is that while some laws seem on their face to be a lot like commands a number of laws do not fit the model of orders backed by threats at all.

For example, we have laws that enable one to make a valid will.

Such laws tell one what one must do in order to state one’s wishes in a way that will be legally effective – that is, which will be enforced by the courts upon one’s death. These do not look like commands; what they look like are instructions of a certain sort. Nor are they backed by threats to get one to comply with them.

Basic Austinianism

The sovereign–subject model of law is a myth, suitable for only (if at all) a very specific form of society: one in which all allegiance to authority is personal allegiance, where the only law within the society is of the ‘‘you must do this’’ or ‘‘you must not do that’’ variety.

But there are further troubles for Austin’s view: it clearly fails to satisfy the authority commonplace and arguably fails to satisfy the common good commonplace.

Basic Austinianism

Austin says, what matters is not the size of the sanction but that it exists; that is sufficient for there to be a law and a legal obligation

But the sovereign’s commands being backed by a small punishment that one is unlikely to have imposed on one might not give anything like a strong reason, let alone a decisive reason, forcomplying with the sovereign’s commands.

Basic Austinianism

So it seems that the reasons for compliance that Austin cites are too weak to make for the law’s authority.

Basic Austinianism

Legal Positivism

Austin believed it is possible and valuable to have a morally neutral descriptive theory of law.