PhilLawLecture1

1: Introduction: "Law"

Some languages have two words for "law" (e.g. French: "loi" and "droit", German: "Gesetz" and "Recht"). This reflects a difference between what may be called "positive law" or "statutory law" (the "laws on the books"), and what may be called "Law", or that which is more than merely actual law but which signifies what law is supposed to be ideally or ultimately. The lack of such a distinction in English may contribute to the debate between Natural Law Theorists and positivists about the nature of law.

Even in English however there are at least two senses to "law": there is "law" in terms of legal statutes, and "law" in terms of science ("laws of nature" or "laws of physics", etc.). The two terms have some common meaning.

Common meaning:

(i) Universality (applies to everyone)

"All tax-payers must file their tax returns by April 15th", at least as stated, applies to everyone, even if there are people who are not tax-payers, since IF you are a tax-payer, then you must file your taxes by that date. The law does not fail to be universal simply because some people, e.g. students not working, are not tax-payers. It is possible for a law to be universal even if it just so happens to apply to very few cases. For example, the law "All hundred-ton commercial road vehicles must have yellow running-boards" is universal even if there are very few hundred-ton commercial road vehicles in existence. The universality is contained in the "all". Compare: "All gases expand when heated." This applies to everything, even if there are things that are not gases, since IF they are a gas, they must obey this law.

(ii) Generality (all the time)

It is not necessary for a law to be eternal in order for it to be general. It is enough that, e.g., the law does not apply some days and not others.

This is not the same as saying that there cannot be, e.g. laws about parking on weekends, since there, the law applies every day, it is just that the content of the law specifies days on which you can park. It is not that the law "Parking in front of the university is allowed only on weekends" is a law that applies sometimes and not other times. It applies all the time that you can park on weekends and not on weekdays.

The point of (i) and (ii) is that statutory law, like scientific law, is not supposed to have exceptions in its application.

Some have argued that statutory law and scientific law are also similar insofar as they are both "inevitable" in some way, and insofar as there is a possibility of "divergence" between law and the world in some way. But this may also point to differences between them.

Scientific law is "inevitable" in the sense that nothing can fail to obey it. Statutory law is "inevitable" in the sense that no one is exempt from it -- everyone must obey it.

(However, it is not always the case that law-breakers are always punished. There is a distinction between full enforcement (legality principle) vs. discretionary prosecution (opportunity principle). Plea-bargaining is an example of discretionary prosecution).

If there is a divergence between scientific law and the world, the scientific law must be abandoned. If there is a divergence between statutory law and the world -- someone breaks the law -- then the law remains and the person is punished.

2: (Western) Theories of Law

(a) Classical Natural Law Theory (Aquinas)

(b) Internal Morality of the Law (Fuller)

(d) Legal Positivism (Hart)

(e) Legal Realism (Holmes)

(a) Classical Natural Law Theory

Classical Natural Law Theory: St. Thomas Aquinas

(b) Internal Morality of the Law

Lon L. Fuller (1902-1978)

(For more on Lon L. Fuller, see http://www.capital.demon.co.uk/LA/legal/fuller.htm )

According to Fuller (cf. The Morality of Law (1964)) a legal system has the following eight desiderata:

(1) There must be laws

(i.e. someone or some body handing out rulings is not enough; there must be a law in existence)

(2) These laws must be publicized

(i.e. laws cannot be kept secret, or be unknown)

(3) These laws must prospective, not retroactive

(i.e. laws should not to extend to cases before the existence of the law)

(4) These laws must be understandable

(i.e. not to be (a) unintelligible, or even (b) extremely difficult to understand)

(5) These laws must not contradict each other

(i.e. if there were laws e.g. requiring one to vote and prohibiting one to vote, then it would be impossible not to break the law -- there would be a "legal dilemma"; the law could not guide action)

(6) These laws must not require the impossible

(e.g. by impossible here is meant physically or psychologically impossible, e.g. no law forbidding sneezing in public; "ought implies can")

(7) These laws must not change too rapidly

(i.e. for example there should not be, in the same day, a new law, then the scrapping of that law and another new law, and then the scapping of that law and another new law)

(8) These laws must be the laws that are enforced

(i.e. the actual administration of the law must be consistent with the laws themselves; it must not be the case that these laws are not enforced and that no laws, or other laws, are enforced)

"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" (p. 21)

"Government says to the citizen in effect, "These are the rules we expect you to follow. If you follow them, you have our assurance that they are the rules that will be applied to your conduct."" (p. 21-2)

Note that Fuller's "secular natural law" theory is supposed to be "a procedural as distinguished from a substantive natural law" (p. 24). Fuller's eight directives say nothing about the content of the laws of a legal system, other than that the laws must not require the impossible. It may be consistent with his theory that a legal system have laws protecting slavery, human sacrifice, the denial of property rights to minorities, etc., so long as these laws exist, are publicized, are understandable, are not impossible to obey, are stable, and are the laws that actually are enforced.

Q. Are all of these directives necessary?

Q. Are they all equally important?

Q. Are they, taken together, sufficient (or are there more directives needed)?

Q. Could a system of law observe all of these directives and yet consist entirely of impermissible laws?

Q. Can there be a legal system in Fuller's sense that is nevertheless oppressive?

John Austin (1790-1859)

(For more on John Austin, see http://plato.stanford.edu/entries/austin-john/ )

Positivism gets its name from "Positive Law", which is to bedistinguished from:

(i) Non-positive law, e.g. Divine Law

(ii) Positive non-law, e.g. positive morality (i.e. positive moral rules)

("Positive" means "existing by position" (p. 33))

The three important components of Positivism are:

(1) Separation Thesis

(2) Command Theory of Law

(3) Sanctions

(1) Separation Thesis (of law and morality)

"The existence of a law is one thing; its merit or demerit is another" (Austin)

"It could not follow from the fact that a rule violated standards of morality that it was not a rule of law; and conversely, it could not follow from the mere fact that a rule was morally desirable that it was a rule of law" (Hart)

(2) Command Theory of Law

"Every law... is a command" (p. 34):

1. "A wish or desire conceived by a rational being, that another rational being shall do or forbear";

2. "An evil to proceed from the former, and to be incurred by the latter, in case the latter not comply with the wish";

3. "An expression or intimation of the wish by words or other signs";

[4. "Where it obliges generally to acts or forbearances of a class, a command is a law"; otherwise it is merely an occasional or particular command]

[5. General command of a sovereign (not necessarily an individual); a sovereign being a party that satisfies the following condition:

"1. The bulk of the given society are in the habit of obedience or submission to a determinate and common superior: let that common superior be a certain individual person, or a certain body or aggregate of individual persons. 2. That certain individual, or that certain body of individuals, is not in the habit of obedience to a determinate human superior." ]

"Being liable to evil from you if I comply not with a wish which you signify, I am bound or obliged by your command, or I lie under a duty to obey it. If, in spite of that evil in prospect, I comply not with the wish which you signify, I am said to disobey your command, or to violate the duty which it imposes." (p. 34)

"Command and duty are, therefore, correlative terms... The greater the eventual evil... the greater the strength of the obligation" (p. 34)

"For superiority is the power of enforcing compliance" (p. 56)

Not

(3) Sanctions

"The evil which will probably be incurred in case a command be disobeyed... is frequently called a sanction" (p. 34)

There are two kinds of sanctions:

(a) Punitive sanctions -- sanctions in which the state punishes someone (e.g. a term of imprisonment, for breaking the law against theft)

(b) Privative sanctions -- sanctions in which someone is deprived of the enforcement power of the state (e.g. non-enforcement of will, because one did not follow proper legal procedure for creating will)

Against Natural Law Theory:

"A sacred and unalienable right is truly and indeed invaluable: For, seeing that it means nothing, there is nothing with which it can be measured." (The Province of Jurisprudence Determined, Lecture II)

(d) Legal Positivism

H. L. A. Hart (1907-1992)

(For more on Hart, see http://www.law.ox.ac.uk/jurisprudence/hart.shtml )

(a) Primary rules: rules that impose duties and obligations on people, rules telling people how to act

(b) Secondary rules: rules about rules --- rules of recognition, rules of change, rules of adjudication