Jurisprudence - Unit 2, law and morality

natural law theory (NLT)

the basic claim is that laws are intrinsically morally good

• Strong NLT = laws are necessarily morally good 

• Weak NLT = laws are characteristically morally good 

• Legal positivism = to the extent that laws are morally good, they are morally good only extrinsically. 

• If laws are morally good intrinsically, then we are presumptively morally obligated to comply with them.

  • However what about laws that disproportionately punish the accused compared to the crime

Cicero on NLT

• ‘True law is right reason in agreement with nature it is of universal application, unchanging and everlasting; it is a sin to try to alter or attempt to appeal such laws and it is impossible to abolish it entirely.. And there will not be different laws at rome and at athens, or different laws now and in the future, but one eternal and unchangeable law will be valid for all nations and all times, and there will be one master and ruler that is, god, over us all, for he is the author of this law, its promulgator and its enforcing judge’

  • Religious origins

  • Hobbes leviathan(?)

conceptual analysis of cicero NLT

it is obvious that laws very much do differ from place to place and that they are not unchanging or everlasting. However, that is based on which definition we choose for law. take its meaning of a synonym for justice/correctness

• Therefore under this new analysis, true justice is unchanging and everlasting, cannot be unaltered. Justice should not appear different between countries and there will be one ruler, god, who is the true author (authority) of justice.

• Mentioned previously: distinguish morality from other good and bad decisions and codes of conduct, criteria involved that moralit, unlike etiquette, is considered universal. And unchanging

Law and morality: 3 questions

• The necessity question: must a norm pass a moral test to be a legal norm

• The sufficiency question: can a moral norm be law because it is morally good

• The constructivist question: do we have to engage in moral reasoning to determine the content of laws

NLT - the necessity question

•  Strong - a law that lacks moral merit is not actually a law 

• Weak - a law that lacks moral merit is still a law, but a defective one  

Argument for weak natural law theory

• Something that cannot perform its intrinsic function is defective. 

• The intrinsic function of a law is to create moral reasons for action 

• An unjust law cannot create moral reasons

• If something that cannot perform its intrinsic function is defective, AND the intrinsic function of a law is to create moral reasons AND an unjust law cannot create moral reasons THEN an unjust law is defective.(the conditional)

• Therefore, an unjust law is defective as a law.

John Finnis’ seven basic goods

• Life - we all desire to live

• Knowledge - we all find value in obtaining knowledge 

• Play 

• Aesthetic experience - engagement with art and inspiration 

• Sociability - humans are naturally social creatures. 

• Religion - finnis uses this in a broad sense. Includes spirituality or sense of thoughts of higher being / life beyond life

• Practical reasonableness / wisdom. - we need this to resolve tensions and balance the other 6 goods in circumstances where not all the 6 goods can be enjoyed to the fullest exten

Connecting finnis to law

• Idea that humans must live in groups 

• And that practical reasonableness is needed to foster the common good 

  • And to think of others rather than our selves

  • To achieve the common good, some acts need to be performed by the whole community 

  • Which he believes can only be done through coordination 

• Coordination requires authority. 

• Law is a remarkable source of authority 

  • A great way to make authoritative solutions to problems of coordination 

• Therefore, practical reasonableness implies a need for law.

Finnis on law and justice

• A just law is one that promotes the common good by maximising and distributing the othr 6 basic goods according to practical reasonableness 

• Therefore, we have a presumptive moral obligation to comply with laws that are just 

• A law that we do not have a presumptive moral obligation to comply with is defective as a law 

  • The very purpose of law is to promote common good through PR and if it can't then it is defective 

• But we have an obligation to obey unjust laws if;

  • The legal system itself is generally just 

  • The disobedience would be visibly public and so could undermine obedience to other laws. 

strong NLT

• The law is necessarily morally good 

• John crowe - 3 theorists on strong natural law theory 

  • Lon crowe 

  • Robert alexy 

  • Michael moore

The radbroch formulae

• Written partly in the aftermath of world war 2 about his personal exepriences of the nazi regime of whom’s acts were enabled by law. 

• Asks the question of whether or not these evil regimes count as laws

• ‘The positive law takes precedence even when its content is unjust and fails to benefit the people, unless the conflict between statute and justice reaches such an intolerable degree that the statute must yield to justice.’ 

• ‘Where there is not even an attempt at justice, where equality, the core of justice, is deliberately betrayed in the issuance of positive law, then the statute is not ‘merely flawed’, it lacks completely the very nature of law’ 

  • Where the motivation of the lawmaker is not justice, then the law is lacking the necessary nature of what law is. 

legal positivism

• Must a norm be morally good in order to be a legal norm?

  • Moral merit is not a necessary condition of a norm being a legal norm 

  • Whether a norm is a law does not ultimately depend on its moal merit 

  • It is possible that there are morally bad, wicked, or evil, legal norms

• Is moral merit alone, sufficient for a norm to be a legal norm?

  • No norm is a legal norm simply because it has moral merit

• Do we have to engage in moral reasoning to determine contents of the law

  • No 

Key theses of legal positivism

• seperability

  • The legality of a norm is seperable from its morality. 

    • Therefore, neither necessary nor sufficient for the law to be morally good 

• Social facts

  • The existence and content of law is ultimately determined solely by social facts 

    • I.e what people have said and done, not moral facts. 

• Sources 

  • All law has a social source.

humes law

• You cannot derive an ought from is 

  • You cannot derive norms from only facts

• Facts are fundamentally different from norms 

  • Facts - purport to describe the world as it is 

  • Norms - say how the world ought to be 

• An argument for a normative conclusion (ought) must include at least one normative premise according to this cunts law

Humes law and the problem for legal positivism

• If the content of thelaw is determined solely by social facts then how can it explain how law is normative

• Some legal theorists claim that the function of the law is to give moral reasoning 

  • Some legal positivists accept this and have the opinion that legal positivism is an attempt to give an account of the existence and content of law and does not try to give an answer to the question of whether we have a general moral obligation to comply with the law. 

  • Others have tried to build an answer to this challenge into their theories. 

hans kelsen pure theory with law

The existence and content of law is grounded in norms not facts

• Thought that legal theory was too mixed with other disciplines, such as politics sociology, psuchology and morality

• Sought to ‘purify’ the study of law - to strip out other disciples and to look at law as a purely legal phenomenon 

• Belief that:

  • Legal theory had confused facts with norms; and 

  • Moral norms with legal norms

• believed all laws were coercive by nature

• Purpose of law is rather to justify the coercive use of force by the state 

• A coercive state action is justified only if it is authorised by a norm 

• And a norm is a legal norm only if it is posited according to anothernorm which validates it as a legal norm. 

kelsen stufenbau

• Base - coercive act, e.g locking someone up 

• Justification - a judicial decision. 

• Authorising norm - legislative norm 

• Authorising the authorising norm - a constitutional norm authorising the legislature

• Infinite regress problem 

• Solution - grundnorm 

(kelsen) grundnorm

• ‘Coercive acts ought to be performed under the conditions and in the manner which the historically first constitution and the norms created according to it, prescribe 

• A kantian presupposition - derived from pure reason 

• Legal norms are rules that are directed to officials, not citizens. And authorise them to impose sanctions for non-compliance

austin’s command theory of law

• A law is a general command from a sovereign 

• A command is an expression of a wish as to what should be done that is backed by a sanction 

• A general command is one that applies to everyone who satisfies the particular description 

•  A sovereign 

  • A human political superior or a group 

  • Only soveeign if people generally obey them 

    • Suffices that the bulk of people obey 

  • Only if they do not obey another generally 

    • Therefore excludes intermediate authorities

  • The power cannot be limited by positive law 

    • Because the sovereign is the source of positive law 

    • Although can be limited by constitutional rules (not laws)

john gardners restatement of LP

• In any legal system, whether a given norm is legally valid and hence whether it forms part of the law of that system, depends on its sources, not its merits

joseph raz’s comment on LP

• “These reflections may help explain why i am referring not to legal positivism but to theories in the positivist tradition. Theories belong to a tradition by their frame of reference, sense of what is problematic and what is not, and by similar historical features which do not presuppose that they all shar a central credo

• Legal positivism seeks from the study of law nothing more or less than the foundation of modern social theory. That the social institutions can be studied in an objective fashion “

  • However it does not deny - in fact most theorists tend to strongly assert - that something identified as valid law may sometimes be so evil or unjust that it should not be obeyed. 

    • I.e unjust laws may be laws, but there is no moral obligation to follow such laws

Historically, much of the writing about law in general involved moral and political inquiries regarding conditions that government is legitimate and under what conditions the citizens have a moral obligation to obey the law

3 levels of seperability thesis

• Whether the legal status or a rule or norm can be separated from moral evaluation. 

• Whether the legal status of a legal system can be separated from a moral evaluation of its contents

• The question of the role of moral standards in the construction of a theory of la

hart - seperability

• Continued to insist on the importance of the conceptual separation of law and morality. He also criticised attempts to analyse law in strictly empirical terms 

• This followed a growing and influential view at the time, that the social sciences require an approach that is different from that used in the hard sciences. 

  • Understanding not merely he actions that occur, but also the meaning those actions have to participants in the practise or institutions being studied

• Argued that harts view is a shift from focusing on law-making institutions to focusing on law-applying institutions 

  • Gerald postema 

• Some word hart’s approach as a reaction to the command theory 

Hart’s weaknesses on command theory

• It was hard to argue that there was a sovereign  in most modern governments 

• Law is not a product of sovereign action,, but something that also helps to constitute sovereignty 

• The concept of a sovereign creates difficulty in explaining the continuity of law 

  • When one sovereign dies and is succeeded, the new sovereign has no history of being generally obeyed by the citizens. 

• There is much that is significant within legal systems that is lost if one looks only to the orders backed by threats, or if one treats all aspects of the law as variations of orders backed by threats 

• Hart sought to distinguish rules from habits 

  • Habits are nothing more than a description of behaviour 

  • Rules can carry additional roles, such as an explanation, a justification and a basis for crticising those who deviate. 

    • I.e a normative role

• People are not merely in the habit of obeying the authorities, they have internalised the rules as reasons for acting is certain ways, and for criticising others. 

• Hart sees confusion in laws being orders backed by threats, how does one distinguish an accepted norm and from a rule over a frightened people by gangsters. 

  • We feel obliged to obey orders from a gunman in fear of the consequences and without such consequences, there is no reason to obey

  • Whereas having an obligation under some valid normative system is psychologically more complex. One acts because one believes that one ought to do so. Not because one fears the consequences or contradicting the rules.

• Hart contested rules that impose duties with those that confer powers. And contrasted rules that apply directly to citizens and rules that govern the operation of the rule-system itself 

  • The latter includes rules of change, adjudication, and recognition.

harts 2 necessary and sufficient conditions for the existence of a legal system

That the valid rules of a system must be generally obeyed and

The criteria set forth in the system’s rule of recognition must be effectively accepted as common public standards of official behaviour by its officials.

HLA rule of recognition

• set of criteria by whih officials determine which rules are/not part of the legal system

  • standards applied = justification for action, standards sometimes created by action

    • can be expressed in writing e.g a constitution

    • at least expressed in criteria which officials follow

      • “to become a valid law.. x y and z must occur“

hart basic tenet of LP

conventional criteria, agreed by officials to determine which rules/norms form part of the legal system

relationship of the rule of recognition and seperability

having an agreed upon criteria by officials that peoople generally obey, which expresses how a rule = law, removes moral evaluation & seperates what law is from what it ought to be (compliant with Humes law)

internal aspect/ point of view of rules and laws

understood in context of general problems of constructing socials theories

• 2 problems

  • how social theories differ from other areas

  • to what extent are social theories scientific

how do social theories differ from other areas? (internal aspect of RoR)

law requires human creation and participartion. and was created for human purposes

• hermeneutic approach - giving priority to trying to understand how others perceive their situation

• scientific approach - relies only on data which is objective.

  • hart believed that the science approach could never give a full understanding of the law

• one can only understand rule-following behaviur by analysing others perspectives

minimum content of natural law

lw and moality often do overlap, without necessary connections between the 2

hart argued that without minimal protections against such morally wrong crimes like murder would lead to a societies collapse.

inclusive vs. exclusive LP

exclusive

• law’s existence is solely determined by social sources (raz)

inclusive

• a system could (by conventional rule) make moral criteria necessary. though it is not sufficient.

• essentially use of a moral criteria is cotingent and derivded from choces or actions of officials rather than the nature of law

raz’s exclusive LP

though judges often engage in moral reasoning to apply laws, this does not describe what the law is, rather how judges ought to decide cases according to law.

morality is an ought not an is. and would need 2 ought premises to prove valid and sound.

lon fuller

• if a systems rules are so badly constructed that they cannot succeed in effectively yielding behaviour, it does not warrant the title of law.

  • those in authority are not entirely ree when creating law.

  • and must repsond and adapt to external order, resources, and human interaction

• lon also believed that law required co-operation and reciprocal obligation to work.

lon fuller - internal morality

• analysis of law based on power, orders, and obedience.

• certain threshold to meet the requirement of (warrant the title of) law

  • threshold is one of function, form and procedure

  • not moral content

• 8 essentials

Lon fuller’s 8 requirements of law.

• if only partially met = only partially lega, and could display greater respect

1. general.

2. publicised

3. minimise retroactive application

4. clear & understandable

5. not be contadictory

6. obeyable, within abilities of those affected by the laws.

7. relatively constant throughout time

8. congruence between laws as announced & applied

• some argue (hart being one) that these are Amoral efficiency problems, though this fails to understand the perception of justice incorporates into procedural elements

• however a problem arises where it claims too much by guaranteeing a substantively just system.

ronald dworkin - legal principles

• dworkin argued that legal principles are moral propositions

  • something which has weight favouring morally just result

• rules are different: they are conclusive

  • where the application of a rule is unclear, officials use legal principle to mkae decisions. judges combine fit of precedents with moral value

  • moral standards, qualify our rules.

dworkin - constructive interpretation

law’s empire, dworkin

• legal claims are intepretive judgements & combine backward and forward looking elements.

• legal practise as an unfolding narrative

• a judges decision/theory must fit the relevant past government actions (statutes and constitutions) whilst improving the law - making it the best it can be.

• interpretor is also constrained by the object of interpretation,

  • dworkin argued for this approach to be applied to literary and artistic interpretation which was controversial for the time.

constructive interpretation - 3 staages

1. pre-interpretive

   1. identifying the object of intepretation

   2. i.e the area we are examining (criminal, commercial)

2. interpretive

   1. what is the underlying moral justification

3. post-interpretive

   1. how can we adjust the materials to reflect the justification to its fullest extent.

dworking - political integrity

• judges should decide cases in ways which make the law more coherant, interpretations which makes the law more like a single, moral vision