Philosophy of Law Midterm Study Questions

State St. Thomas’s definition of Law:

Law is nothing else than an ordinance of reason for the common good, promulgated by him who has care for the community.

Explain St. Thomas’s definition of Law:

• The main goal of law and law-making is to promote the common good.

• The ‘good’ is what human beings desire by nature (e.g., knowledge, appetites, food, water, desires for pleasure)

• Must still pursue good in a rational way (it is not just mere desire)

• Laws must be promulgated — made known, otherwise it has no effect.

• Laws must be made my people with authority, otherwise there is no force of law.

• Unjust laws/statutes have no force of law

State and Explain the 4 types of law St. Thomas distinguishes:

1. Eternal (the law by which God governs his creation).

2. Natural (that portion of eternal law discoverable through human reason).

3. Divine (eternal law that God has revealed to man).

4. Human (law made by humans with authority to govern).

St. Thomas believes that the content of natural law can be reached via conclusion or via determination. Explain the difference between these two. Explain and illustrate how we can reach the content of natural law via conclusion and via determination.

1. Via conclusion → follows from premises that we should seek and promote life (given by the first principles, reason itself doesn’t specify what the rules of the road should be, just that we must seek good, avoid evil).

2. Via determination → specify the rules, determined through reason by man through authoritative power.

(Fundamental principles (seek good, life is to be promoted) are known to all men and have always been the case, and specific laws are based on context and are determined).

Example of reaching the content of natural via conclusion:

1. Seek good, avoid evil (first principle, self-evident)

2. Whatever man desires by nature is good.

3. Man desires by nature to live.

4. Therefore, life is good.

5. Given (1), seek and promote life ← we know this via conclusion — it follows from the premises.

• But via determination, we can specify the rules, such as the law that you must drive on the right side of the road.

According to St. Thomas, is it ever permissible to violate the natural law and the divine law? Explain his view.

• If a human statute (human law) runs contrary to natural law, depends on the case whether you should follow it or not (must be determined through discretion, there might be some cases where it’s better violate a ‘bad’ law).

• If a human statute runs contrary to divine law, it must never be obeyed.

However, it is never permissble to intentionally violate natural or divine law.

• Both are direct expressions of God’s eternal and unchanging reason and will.

• Natural law is the rational creature’s participation in the eternal law, enabling humans through reason to discern good from evil.

• Divine law (found in scripture and the commandments) is supernaturally revealed by God to guide humans.

• St. Thomas views natural moral law as universal and unchangeable in its primary principles (e.g., preserving life, seeking truth, avoiding evil).

• An act that intrinsically opposes human nature or the common good is a sin and cannot be justified.

• While human laws can be unjust and therefore must not be obeyed if they command something contrary to the divine or natural good (e.g., commanding idolatry)—the natural and divine laws themselves are rooted in divine perfection and allow no exception or permissible violation

Explain as fully as you can John Austin’s definition of law:

Def: law is a general command of the sovereign.

What is a command?

• A command is a signification of desire backed up by a threat (with that threat being either explicit or implicit).

Commands may oblige, but may not be laws unless…

• they are general, pose a threat, and are given by a sovereign.

What is a sovereign according to Austin?

• The sovereign is the person or determinate body of persons who are habitually obeyed and not under obedience of anyone else.

What is the legal positivist view of law?

• In order for something to be a valid law, it need not conform to any moral or common view (i.e., Nazi laws are still laws).

• As long as they are issued by a sovereign, and backed up by threat, it is a law.

T/F: For Austin, it is not essential for the law to be made for the common good.

True.

(If the sovereign wishes to remain in power, he will not want to egregiously disobey morality/the common good because he knows this will lead to backlash and revolution, but he doesn’t need to — it would be in his own self-interest.)

T/F: Distinction between common good and morality is not relevant when creating law in the positivist view.

True.

(Austin is attempting to simplify things with his view by saying we need not appeal to any notion of ‘natural rights’ or ‘justice’ ; we as judges only need to look at what the law says → the law is simply what the sovereign has commanded)

Laws for Austin are a species of ____ _____ given by a ______ .

Laws are a species of general commands given by a sovereign.

Can customary rules have the force of law according to Austin? Explain and critically discuss his answer.

• It poses a problem because it grows from the general body, not originally from a sovereign power.

• Custom can sometimes seem to have force of law, enforced by judges, but not always.

• For custom to be a law, the sovereign can apply it tacitly.

Tacit command: When a subordinate person of authority (i.e., a judge) makes a rule, the sovereign can passively accept it through non-interference, turning it into law/statute.

Explain the views of Oliver Wendell Holmes and Jerome Frank concerning the nature of law. On their views, what does it mean to say that A has a legal duty to do B? Critically discuss their view.

Holmes and Frank represent Legal Realism

Holmes thinks tha he law is nothing but a prediction of what a judge will decide.

• Doesn’t view law as a general command of the sovereign (legal positivism) or natural law.

• Puts judges at the forefront of understanding legal system: really just a prediction, law is wrongly infused with countless moral terms - they should be separated.

A has a legal duty to do B → Means, if A fails to do B, then A will be punished or subject to some adverse judgment.

• To Holmes, all it means is that A is likely to be punished for not performing B.

• To them, judges’ decisions make the law (not statutes, precedents, customes, etc., these are merely sources that judges look at)

• Law isn’t some product of a priori moralistic reason — it is shaped and developed by history.

• There isn’t even really any cohesiveness or rhyme or reason to legal systems (no coherent whole).

• Maybe the laws we’ve got aren’t deduced from some fundamental principles; maybe they’re deduced from accidents, histories, institutions of power.

Why might Holmes and Frank’s Legal Realist view be mistaken?

If saying ‘A has a legal duty to do B’ just means tha A is likely to be punished for not preforming B…

• What if A just bribes the judge and gets away with not preforming the duty?

• What if A flees the country?

Legal duties as mere claims of judges decisions just seems to be mistaken..

• If we just look at the law from the perspective of the ‘bad man’, we ignore the view that we ‘ought’ to obey certain laws.

• Judges don’t simply make decisions based on their own behavior; they often look at precedents, principles, statutes that require them to make some rule or another.

• They’re not making predictions about their own decisions.

• There does seem to be a legal duty despite the absence of punishment.

Explain Hart’s criticisms of Austin’s account of sovereignty and Austin’s view that all laws impose duties.

Hart outlines 3 questions:

1. How does law differ from orders backed up by threats?

2. What is the relationship between morality and law?

3. What are rules?

Hart’s positive account: a legal system is the union of primary and secondary rules.

3 Issues centered on Austin’s positivist account:

1. The content of laws

2. The range of application

3. The mode of origin of laws

The content of laws

• *Remember that Austin views laws as the general commands of the sovereign. Commands are backed by threats. And all laws are duty-imposing laws.

Hart: this may be true for criminal law, but we need to consider power-conferring laws (laws that don’t impose duties)

1.) Private power-conferring laws: laws specifying how to make contracts, wills, adoption rules

2.) Public power-conferring laws: specify the jurisdiction of the court and the scope of legislature’s power.

• Not all laws impose duties (do not all fit under the category of general commands of the sovereign).

• We can remove sanctions and still have general rules (e.g., don’t steal). Even nullity of a contract isn’t technically a punishment; in power-conferring laws, it’s impossible to separate nullity with failure to comply. In criminal law, we can easily separate failure to comply with punishment.

The range of application:

• Laws on sovereigns: It seems that the sovereign can be bound by law.

• E.g., the king has certain duties, limits on power, etc..

• This makes less sense under the Austianian view

The mode of origin of laws:

• Custom can have the function/force of law → they can grow up and develop without being commanded by the sovereign.

• But Austin simply treats customary laws as tacit commands (never explicitly given).

More problems with Austinian view:

1. Habit of obedience

• Example of Rex II: how does succession of sovereigns work if a general habit of obedience is needed to be a sovereign?

2. Perseverance/Persistence of laws

• Think about witchcraft law of the 18th century — is law made over 200 years ago still law?

• Presence of a rule explains the persistence of law on Hart’s view

• There are “rules of right condition” that makes a law valid and persistent (rule of recognition, change, and adjudication).

Rule-governed behavior: may involve group behavior, but it also involves normative components that act as a reason for that behavior. Wherever there’s a rule → some obligation to preform (whether some sort of sanction or punishment).

Explain Hart’s view of the “internal aspect” of rules. How does mere social habit differ from rule following? Explain Hart’s view that the predictive analysis of law leaves out the internal aspect of rules.

Internal vs. External View

• Hart wants to distinguish between mere group behavior and rules within groups.

• Mere convergence of behavior does not imply a rule

• In order for there to be a rule in society, it’s not enough for just a norm of behavior to exist, but there must be an internal attitude of criticism (for acting against it) and obligation.

• Need critical attitude, a sort of normative expectation to say there’s a rule (and that it is obligatory in some way).

• Rule-governed behavior has a normative component to it that mere group behavior doesn’t.

• Wherever there’s a rule, there is some obligation to preform (with a normative factor behind it)

• Would it still be a valid law even if the majority of people don’t obey it? Yes, still remains valid law as long as there are proper officials to enforce it and it follows the rules of recognition.

External: Can understand a legal system’s laws and make predictions about decisions under it, but that doesn’t mean you feel a duty to follow or feel an obligation toward them.

Internal: Accept the given rules as a normative standard for oneself and others.

• Laws based solely on the definition of predictions (legal realism) looks at laws only externally.

• Hart believes that we need an internal component to the concept of law to justify our reasoning for following it.

  • we feel normative duties to follow laws for a reason.

  • we don’t only experience laws externally (from a wholly outside point of view)

Ex (External): You can follow the customs of a country without endorsing it or believing it yourself

Two minimum conditions necessary and sufficient for the existence of a legal system:

1. Those rules of behavior which are valid according to the system’s ultimate criteria of validity must be generally obeyed, and

2. its 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 behavior by its officials.

Explain as fully as you can Hart’s view that a legal system law the union of primary and secondary rules.

Primary rules: rules of obligation, tell you what you ought or ought not to do ( e.g., “don’t murder”, “don’t steal”)

Secondary rules: used to address the problems with primary rules; rules of recognition, rules of change, and rules of adjudication.

Combination of primary & secondary rules = legal system.

Need both to have well-functioning rules in society.

• On Hart’s view, for something to be a law, it must be a rule (either primary or secondary).

  • Judges make decisions because they view themselves as required to do so because of an existing rule.

  • Law is not merely a prediction (legal realist) – rules come first.

  • Holmes (legal realist) thinks it’s judges that make the law.

  • To Hart: it’s the rule that creates the judges, they are not the sources of law, they are created from them based on secondary rules.

• Do secondary need to be accepted by the majority of society?

  • Hart: not technically, only the authorities or officials to whom the secondary rules are made for need to accept & understand these rules.

• What about primary rules?

  • Should be accepted (but need not be fully understood) by the vast majority of society.

Problem with society of only primary rules:

1. Uncertainty

2. Static nature

3. Inefficiency

The only way to remedy these defects are through: rules of recognition, rules of change, and rules of adjuciation.

• A rule is valid if laid out by rule of recognition, but you can still have a valid rule that is not widely followed.

2 minimum conditions necessary for a legal system to exist:

• Primary rules have to be generally obeyed.

• Secondary rules have to be accepted as the standard for and amongst the officials (officials can’t abandon rules of recognition/secondary rules)

• With the addition to the system of secondary rules, the range of what is said and done from the internal point of view is much extended and diversified.

• With this extension comes a whole set of new concepts and they demand a reference to the internal point of view for their analysis. These include the notions of legislation, jurisdiction, validity, and, generally, of legal powers, private and public.

Must a law be compatible with moral rules in order to be legally valid? Compare and contrast the ways the natural law theory and legal positivism answer this question.

Hart identifies several grounds or arguments for skepticism about the existence of international law. Explain these arguments and Hart’s response to them.

Hart considers three main objections to the existence of international law:

First Objection:

→ “If there is international law, then there must be sanctions as punishment to enforce legal obligations. But there aren’t, therefore, there is no international law.”

• The objection is reminiscent of the Austinian view of law; where there is threat of punishment, that makes law.

Hart’s Response?

→ Obligation does not require the existence of punishment.

• The predictive model of failure to obilge with punishment is wrong.

• Obligations can exist even if there is no realistic expectation of punishment.

• There can still be rules that nations think themselves bound by, and that’s all it takes for there to be obligation for them.

Second objection:
→ “(1) If there is international law, then it must be similar to municipal (state) law. (2) Municipal law has bodies that enforce the law with sanctions. (3) There is no such body in international law. (4) Therefore, there is no international law.

→ There’s no enforcement mechanism, no police force.

Hart’s Response:

• The situation between nations is just different than the situation between states.

• Among states, power is relatively equal. Humans are in close proximity. You can have a police force to punish ordinary criminals.

• It’s just different with countries (they are much larger, and you deal with larger situations like nuclear weapons).

• The situations between nations just isn’t conducive to the possibility of an effective police force.

• Another point: countries can exist for a long time without violating international law → you don’t really need a police force among nations like you do in states (like Newport News..)

Third Objection:

The “Voluntarism Objection”/ Sovereignty

→ “(1) States are sovereign. (2) Therefore, the only obligations on states are those which they consent to. (3) But, genuine laws can be binding without consent. (4) Therefore, there are no genuine laws binding on states,

→ The only rules that are binding on states are those they bind themselves to (there can be treatises, but states must consent to agreement with them).

Hart’s Response

→ (2) does not follow from (1).

• A state can be sovereign but still have obligations not to do certain things.

• E.g., The U.S is sovereign, but there are limits to what the federal government can do.

• The government of the U.S can come into existence with those obligations already imposed upon it → the limitations came first.

• There’s no contradiction in the term ‘limited sovereignty’

• Sovereignty can be constrained by rules and can come into existence with rules.

• International laws can also show this → Israel came into existence limited by maritime law, for example.

• Countries can come into existence with obligations under international law.

Explain what Hart means by “the open texture” of law. Explain “formalism” and “rule-skepticism” and Hart’s criticisms of each. How is the example of “scorer’s discretion” relevant to the view that the law is whatever the judge says it is.

First Error - Formalism: the view that judges never need to exercise any judgment or discretion in applying rules to particular cases.

1. Open texture of the law:

• When humans guide behavior they often use general rules through legislation and precedent.

• General rules are very useful, but they use general language; this can be problematic for interpretation.

• So, a judge has to exercise some judgment/discretion in the application of a law to a partciular case.

• There are clear cut cases and innumerable cases — and the judge must use discretion when applying a general statute.

• Cannot simply apply rules in a formalistic way.

1a. Rules are sometimes set up that calls for judge’s judgment/discretion

• I.e., what counts as ‘excessive bail’?

• What is ‘fair and reasonable’ compensation?

• Who decides what constitutes innocence ‘beyond a reasonable doubt.’

Second Error - Rule Skepticism: that judges are just not bound by rules — laws are made by judges.

• Most extreme view: all laws are just decisions of judges.

• Less extreme view: whatever the judge decides is the law, and the current final authority of the law is she who is making the law (On this view, the Supreme Court is making the law).

• The right answer is not already set; the written law does not have final say — the judges do.

What’s wrong with rule-skepticism?

→ Hart’s example of Scorer’s Discretion:

• In an ordinary soccer match, there’s a referee applying the rules but we believe a referee can make mistakes.

• But imagine a game where the score is whatever the scorer says it is.

• Hart thinks that in our present legal system, judges think of themselves as bound to the laws and rules that make up that system..

• They could not have a functioning legal system if every rule were up to discretion; they must be bound to some rules, otherwise, is it even a legal system?

The SCOTUS has final say, but it is fallible:

Final authority does NOT equal infallibility.

*Hart is ultimately trying to say that the two views of Formalism and Rule-Skepticism are wrong, and that philosophies of interpretation should fall in the middle of these two extremes.