An Introduction to the Law and its Sources Susan Carter

1.2 What is law? The Scope of Jurisprudence

What is ‘law’? Osborn’s Concise Law Dictionary tells us that “law” means: “ an obligatory rule of conduct. The commands of him or them that have coercive power (Hobbes). A law is a rule of conduct imposed and enforced by the Sovereign (Austin). But the law is the body of principles recognised and applied by the State in the administration of justice (Salmond). Blackstone, however, maintained that a rule of law made on a pre-existing custom exists as positive law apart from the legislator or judge”

Four answers: NATURAL LAW NATURAL LAW POSITIVISM POSITIVISM COMMON LAW COMMON LAW LEGAL REALISM LEGAL REALISM

NATURAL LAW Aristotle Aristotle Cicero Cicero St Thomas Aquinas St Thomas Aquinas Finnis Finnis Dominated Western thought until the 18th Century Dominated Western thought until the 18th Century Assertions about natural law were often the basis of the argument for individual or human rights and for imposing limitations on government Assertions about natural law were often the basis of the argument for individual or human rights and for imposing limitations on government Groundwork for the principles of international law Groundwork for the principles of international law

Cicero, De Re Publica “True law is right reason in agreement with nature; it is of universal application, unchanging and everlasting. It summons to duty by its commands, and averts from wrongdoing by its prohibitions….It is a sin to try to alter this law, nor is it allowable to repeal any part of it, and it is impossible to abolish it entirely.We cannot be freed from its obligations by Senate or people, and we need not look outside ourselves for an expounder or interpreter of it. 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. Whoever is disobedient is fleeing from himself and denying his human nature, and by reason of this very fact he will suffer the worst penalties, even if he escapes what is commonly considered punishment”

Thomas Aquinas: 4 types of law – God’s plan for the universe 1. The Eternal – God’s plan for the universe that part of the eternal law which is discoverable by reason and which is to be found in the human mind 2. The Natural- that part of the eternal law which is discoverable by reason and which is to be found in the human mind - the law created by humans on the basis of natural reason, (or positive law) and 3. The Human - the law created by humans on the basis of natural reason, (or positive law) and – that law revealed in scripture. 4. The Divine – that law revealed in scripture.

The problem of “unjust laws” Lex iniusta non est lex: an unjust law is not a law Lex iniusta non est lex: an unjust law is not a law A just law : A just law : is consistent with the requirements of natural law is consistent with the requirements of natural law Does not exceed the authority of the law maker Does not exceed the authority of the law maker Imposes burdens on citizens fairly. Imposes burdens on citizens fairly.

Finnis’ basic goods 1. life (and health) 2. knowledge 3. play 4. aesthetic experience 5. sociability (friendship) 6. practical reasonableness 7. religion

POSITIVISM Jeremy Bentham Jeremy Bentham John Austin John Austin HLA Hart HLA Hart Very influential over last 200 years and in current legal thinking; a critique of common law and natural law thinking Very influential over last 200 years and in current legal thinking; a critique of common law and natural law thinking

Positivism Is and ought or is and should are separate questions. Is and ought or is and should are separate questions. “The existence of law is one thing; its merit or demerit is 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. A law, which actually exists, is a law, though we happen to dislike it, or though it vary from the text, by which we regulate our approbation and disapprobation.” John Austin “The existence of law is one thing; its merit or demerit is 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. A law, which actually exists, is a law, though we happen to dislike it, or though it vary from the text, by which we regulate our approbation and disapprobation.” John Austin

Positivism Legal systems are created by (posited) by people rather than having some natural or metaphysical existence. Legal systems are created by (posited) by people rather than having some natural or metaphysical existence.

Law as a command: Austin Features of a command: Features of a command: a wish or desire of one rational being directed to another a wish or desire of one rational being directed to another this intention is communicated this intention is communicated if the command is not obeyed a punishment of some sort will result if the command is not obeyed a punishment of some sort will result

Command theory Austin: A law is a general command made by a sovereign Austin: A law is a general command made by a sovereign Problem: how could sovereigns – who make commands – be subject to the rule of law. Problem: how could sovereigns – who make commands – be subject to the rule of law. Rejected by HLA Hart Rejected by HLA Hart

HLA Hart Laws exist in two groups: Laws exist in two groups: primary rules (substantive law – eg road rules) primary rules (substantive law – eg road rules) Secondary rules (rules about rules – eg constitutions, procedural rules.) Secondary rules (rules about rules – eg constitutions, procedural rules.) “rule of recognition”. “rule of recognition”.

COMMON LAW Not necessarily what we think of as common law today, but the foundational ideas of much of common law thought. Not necessarily what we think of as common law today, but the foundational ideas of much of common law thought. Common law theory flowered in 16-18th centuries. Common law theory flowered in 16-18th centuries. Coke Coke Blackstone Blackstone Hale Hale Predominantly English Predominantly English

Common Law Law is not something made either by king, parliament or judges, but rather is the expression of a deeper reality which is merely discovered and publicly declared by them. (cf Trigwell’s case) Law is not something made either by king, parliament or judges, but rather is the expression of a deeper reality which is merely discovered and publicly declared by them. (cf Trigwell’s case) Precedent Precedent Written record, or reporting of law Written record, or reporting of law Judges declare law, they do not make law Judges declare law, they do not make law Individual judge is unimportant – “oracle” of the law Individual judge is unimportant – “oracle” of the law Law as artificial reason which must be learned Law as artificial reason which must be learned

Blackstone “judges…are the depositaries of the law; the living oracles, who must decide in all cases of doubt, and who are bound by an oath to decide according to the law of the land. Their knowledge of that law is derived from experience and study;…and from being long personally accustomed to the judicial decisions of their predecessors. And indeed these judicial decisions are the principal and most authoritative evidence….The judgement itself [is] carefully registered and preserved, under the name of records, in public repositories set apart for that particular purpose; and to them frequent recourse is had, when any critical question arises, in the determination of which former precedents may give light or assistance…For it is an established rule to abide by former precedents, where the same points come again in litigation; as well to keep the scale of justice even and steady, and not liable to waver with every new judge’s opinion”

Prohibitions del Roy : Coke “ A controversy of land between parties was heard by the King, and sentence given, which was repealed, for this, that it did belong to the common law: then the King said, that he thought the law was founded upon reason, and that he and others had reason, as well as the Judges; to which it was answered by me, that true it was, that God had endowed his Majesty with excellent science, and great endowments of nature; but his Majesty was not learned in the laws of his realm of England, and causes which concern the life, or inheritance, or goods, or fortunes of his subjects, are not to be decided by natural law reason, but by the artificial reason and judgement of law, which law is an act which requires long study and experience, before that a man can attain to the cognizance of it; and that the law was the golden met- wand and measure to try the causes of the subjects; and which protected his Majesty in safety and peace: with which the King was greatly offended and said, that then he should be under the law, which was treason to affirm, as he said: to which I said, that Bracton saith, quod Rex non debet esse sub homine, sed sub Deo et lege [that the King is under no man, but under God and the law].

Common Law Change is possible – through the incremental development of the common law by accumulated decisions, but a law which has stood the test of time is to be preferred to one which has simply been devised in a particular era. Change is possible – through the incremental development of the common law by accumulated decisions, but a law which has stood the test of time is to be preferred to one which has simply been devised in a particular era. Law organically connected to the people it serves through custom and tradition Law organically connected to the people it serves through custom and tradition

LEGAL REALISM Oliver Wendell Holmes (laid groundwork) Oliver Wendell Holmes (laid groundwork) “The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by law” (This is the question which the bad man wants answered.) “The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by law” (This is the question which the bad man wants answered.) John Dewey (Dewey decimal system) John Dewey (Dewey decimal system) Karl Llewellyn Karl Llewellyn Jerome Frank Jerome Frank 20th Century 20th Century

Legal Realism The life of the law does not exist in the application of pre-existing rules to concrete cases, but rather in the development through experience of legal principles. The life of the law does not exist in the application of pre-existing rules to concrete cases, but rather in the development through experience of legal principles. The law then, is what the courts do, not what they did two centuries ago (except insofar as it is a guide to what they will do now), or an abstract set of doctrines. The law then, is what the courts do, not what they did two centuries ago (except insofar as it is a guide to what they will do now), or an abstract set of doctrines. For realists, law is an inherently practical activity, which must be associated with the real world, as it is something which has a practical effect in the concrete world, and is not merely a body of abstract rules and doctrines. For realists, law is an inherently practical activity, which must be associated with the real world, as it is something which has a practical effect in the concrete world, and is not merely a body of abstract rules and doctrines.

Karl Llewellyn: “They view rules, they view law, as means to ends; as only means to ends; as having meaning only insofar as they are means to ends. They suspect, with law moving slowly and the life around them moving fast, that some law may have gotten out of joint with life.”