1. The Nature of Law “The/A Standard Story” 1

2. Main Question of General Jurisprudence “What is Law?” “What is Law?” Different from: “What is the law of/in this or that legal system/jurisdiction/domain” Different from: “What is the law of/in this or that legal system/jurisdiction/domain” Question presupposes that law is: Question presupposes that law is: – A unique/distinctive social phenomenon – With more or less universal characteristics – That can be discerned through “philosophical analysis” 2

3. Methodology Considerable controversy over past few decades on how to pursue philosophical analysis in legal theory: 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) 3

4. Distinctive Features of Law Law guides/purports to guide conduct, to prescribe behaviour (similar to morality, norms of rationality, cultural norms, etc.) Law guides/purports to guide conduct, to prescribe behaviour (similar to morality, norms of rationality, cultural norms, etc.) Purports to provide “reasons for action” Purports to provide “reasons for action” Law appears to have an “essential normative character” Law appears to have an “essential normative character” What, if anything, is distinctive about LAW What, if anything, is distinctive about LAW 4

5. Laws (always? typically? mainly?) appear to originate in human actions; “acts of will” 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 But only some acts of will bring about the existence of laws Thus, two main ideas of interest concerning the nature of law: 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 5

6. Main Theme 1: Legal Validity Indexed to time and place (and sphere of activity?) Indexed to time and place (and sphere of activity?) Laws can be valid at one time but not others 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) 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)? 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]” 6

7. Two Schools of Thought Legal Positivism Traditionally associated with two fundamental claims Traditionally associated with two fundamental claims Thesis 1: “Social Thesis” 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” 7

8. 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 8

9. Legal Positivism, cont’d Thesis Two: The Separation/Separability Thesis Thesis Two: The Separation/Separability Thesis An implication of the Social Thesis An implication of the Social Thesis A “conceptual separation between law and morality” A “conceptual separation between law and morality” A conceptual separation between law and what it ought to be 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 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 L has appropriate social source ≠> L has moral merit 9

10. 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.” 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 Consistent with considerable overlap between law and morality E.g. Both law and morality contain norms dealing with killing, violence, keeping of promises, etc. E.g. Both law and morality contain norms dealing with killing, violence, keeping of promises, etc. Both refer to obligations and rights Both refer to obligations and rights Laws are often enacted for moral reasons Laws are often enacted for moral reasons Etc. Etc. 10

11. Separation/Separability Thesis, cont’d Overlap/connections can be a function of: 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.) 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 Without such regulation no one would have reason to support/submit to law – conceptual necessity; in virtue of what law is (Green) 11

12. Green’s Conceptual Connections Necessarily, law deals with moral matters (regulates our most vital (moral) interests) 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 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) 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) 12

13. Separation/Separbility Thesis So what’s left of the Separation/Separability Thesis? So what’s left of the Separation/Separability Thesis? Depends on type of legal positivism Depends on type of legal positivism Two main contemporary forms: Exclusive (Hard) Legal Positivism versus Inclusive (Soft) Legal Positivism Two main contemporary forms: Exclusive (Hard) Legal Positivism versus Inclusive (Soft) Legal Positivism Exclusive Positivists: Raz, Green, Marmor, Giudice/Culver Exclusive Positivists: Raz, Green, Marmor, Giudice/Culver Inclusive Positivists: Hart, Coleman, Kramer, Waluchow Inclusive Positivists: Hart, Coleman, Kramer, Waluchow 13

14. 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. 14

15. 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 15

16. An Implication of ILP The legal validity of a norm can (but need not) depend on its moral content 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 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 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 16

17. Natural Law Theory Natural Law Theory: The moral content of a putatively valid legal norm necessarily bears on its legal validity 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 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 This crucial condition of legal validity not merely a function of social convention A function of the very nature of law A function of the very nature of law 17

18. Natural Law Theory, cont’d Valid positive law must, of conceptual necessity, conform in its content to some basic precepts of Natural Law 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” – 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] 18

19. ST. THOMAS AQUINAS’ DEFINITION OF LAW L is a law (legally valid norm) if and only if: L is a law (legally valid norm) if and only if: 1. L is an ordinance of reason 1. L is an ordinance of reason 2. L is for the common good 2. L is for the common good 3. L is made by him who has care of the 3. L is made by him who has care of the community community 4. L is promulgated 4. L is promulgated 19

20. 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… 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 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 DIVINE LAW: corrective (mistakes re: NL) and supplement (supernatural end; NL pertains to natural ends only); authoritative religious texts and pronouncements 20

21. ST. THOMAS AQUINAS’ NLT HUMAN LAW HUMAN LAW – Creation of human sovereign (“he who has care of the community”) – Should be derived from NL – Two forms of derivation Deduction Deduction “Determination of Common Notions” (“determinatio”) “Determination of Common Notions” (“determinatio”) 21

22. 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) 22

23. ST. THOMAS AQUINAS’ NLT Determination of Common Notions Discretionary choice required: Two main contexts 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 Example 1: NL requires equality in hiring practices – yes to affirmative action? – no to affirmative action (reverse discrimination)? – no to affirmative action (reverse discrimination)? 23

24. ST. THOMAS AQUINAS’ NLT Example 2: NL requires “fair tax system” Example 2: NL requires “fair tax system” Various possibilities Various possibilities S1, S2, S3 unfair – excluded S1, S2, S3 unfair – excluded S4, S5, S6 all fair S4, S5, S6 all fair S4 & S5 much more fair than S6 S4 & S5 much more fair than S6 S6 excluded S6 excluded Neither S4 nor S5 more fair than the other 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 24

25. ST. THOMAS AQUINAS’ NLT What if sovereign commits an error in deriving HL from NL? What if sovereign commits an error in deriving HL from NL? Sovereign’s directive not valid law Sovereign’s directive not valid law Directive is “perversion of law” – “act of violence” Directive is “perversion of law” – “act of violence” Sovereign’s directive may/should be disobeyed unless compliance necessary “to avoid scandal and disturbance” 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 BUT compliance required NOT because of NL duty to obey valid HL, but because of NL duty to avoid scandal and disturbance 25

26. Features of Aquinas’ NLT The notion of legality necessarily contains moral content/imposes moral limits 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 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. 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. 26

27. Features of Aquinas’ NLT, cont’d A valid law must (not merely should) be just – an ordinance of reason directed toward the common good 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” 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 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 The authority of HL – its normative character or dimension – derives from this nature 27

28. Main Theme 2: The Normative Character of Law What is the nature of the legal “ought” – of “legal obligation”? What is the nature of the legal “ought” – of “legal obligation”? Is there is such a thing as a distinctly legal obligation? Is there is such a thing as a distinctly legal obligation? Is it a species of moral obligation? (Aquinas?) 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) 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) Is it to be subject to a sanction for violation of law? (Austin’s reductionism) 28

29. Hart’s Alternative Hart: neither option is correct Hart: neither option is correct Austin’s reductionism fails to distinguish being obliged (by threat of sanction) and being under obligation 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 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 They view themselves as bound by the norm, not any sanction there might be for failure to comply with it 29

30. 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 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 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 Therefore, legal obligation is not a species of moral obligation Hart’s “any reasons thesis” Hart’s “any reasons thesis” 30

31. 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 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 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 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 31

32. Raz: The Service Conception Law has the potential to help us satisfy, in our conduct, the requirements of “right reason” 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 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” 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 Even when it fails to satisfy this potential it’s purporting to provide this service reveals its (potentially) normative nature 32

33. Raz: The Service Conception According to Raz, the law is a social institution that necessarily claims to be a legitimate authority 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 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 33

34. 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 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 Example: good financial advisor 34

35. Raz: The Service Conception Law sometimes: 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?) 35

36. 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 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) Law further claims that its directives supersede all other directives (supremacy) 36

37. 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 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 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” In these ways the law is “normative” 37

38. Consequences/Further Features of Raz’s Service Conception of Authority Law’s legitimate authority dependent on successful fulfillment of its essential, distinctive role 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) 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 It should pre-empt our reliance on those reasons Otherwise authority can no longer successfully mediate between us and those dependent reasons Otherwise authority can no longer successfully mediate between us and those dependent reasons 38

39. 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 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 Even when it fails to be legitimate, it must be the KIND of thing that COULD be a legitimate authority 39

40. 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 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 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 Therefore if ELP is true, law is the kind of institution that is capable of serving its distinctive social role in our practical reasoning 40

41. 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 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 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 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 Hence: ELP is correct, and ILP and NLT must be rejected 41

42. Consequences/Further Features of Raz’s Service Conception of Authority Raz’s theory consistent with both the Social Thesis and the Separation/Separability thesis 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) Social Thesis: valid law identifiable exclusive by social facts determined as relevant by socially constituted rules of recognition accepted and practiced by officials (ELP) 42

43. Consequences/Further Features of Raz’s Service Conception of Authority Separation/Separability Thesis: 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