The Nature of Law

In contrast, philosophy of law is interested in the general question: What is Law? This general question about the nature of
law presupposes that law is a unique social-political phenomenon, with more or less universal characteristics that can be
discerned through philosophical analysis.

there is the sheer intellectual interest in understanding such a complex social phenomenon which is, after all, one of the
most intricate aspects of human culture.

Law, however, is also a normative social practice: it purports to guide human behavior, giving rise to reasons for action.=
explaining this is a main challenge of general jurisprudence.

Part of what is involved in the understanding of the nature of law consists in an explanation of how law differs from these
similar normative domains (morality, religion, social convention, etiquette, etc.), how it interacts with them, and whether
its intelligibility depends on other normative orders, like morality or social conventions.

What conditions render a putative norm valid? Its source? Or content?

here is the interest in the normative aspect of law. This philosophical interest is twofold: A complete philosophical
account of the normativity of law comprises both an explanatory (how norms give rise to reasons for action) and a
justificatory task (whether people ought to comply)

*Basically, legal positivism asserts, and natural law denies, that the conditions of legal validity are purely a matter of
social facts. In contrast to positivism, natural law claims that the conditions of legal validity are not exhausted by social
facts; the moral content of the putative norms also bears on their legal validity.

The Conditions of Legal Validity

-main insight of legal positivism, that the conditions of legal validity are determined by social facts, involves two separate
claims which have been labeled The Social Thesis and The Separation Thesis.
-a social phenomenon, and that the conditions of legal validity consist of social—that is, non-normative—facts.

Most contemporary legal positivists share the view that there are rules of recognition, namely, social rules or conventions
which determine certain facts or events that provide the ways for the creation, modification, and annulment of legal
standards.

-legal positivism maintains, essentially, that legal validity is reducible to facts of a non - normative type, that is, facts
about people’s conduct, beliefs and attitudes.

-Natural lawyers deny this insight, insis ting that a putative norm cannot become legally valid unless it passes a certain
threshold of morality, a universal morality.
-Separation Thesis is an important negative implication of the Social Thesis, maintaining that there is a conceptual
separation between law and morality, that is, between what the law is, and what the law ought to be.

-Legal positivism can accept the claim that law is, by its very nature or its essential functions in society, something good
that deserves our moral appreciation. Nor is legal positivism forced to deny the plausible claim that wherever law exists, it
would have to have a great many prescriptions which coincide with morality.
-But as to conditions of legal validity, it will not depend on moral merits.

-A contemporary school of thought, called inclusive legal positivism , endorses the Social Thesis, namely, that the basic
conditions of legal validity derive from social facts, such as social rules or conventions which happen to prevail in a given
community. But, inclusive legal positivists maintain, legal validity is sometimes a matter of the moral content of the
norms, depending on the particular conventions that happen to prevail in any given community.

-Natural law faced refinement due to the objection of its core insight that morally bad law is not law= jurists find this
incompatible.
-Contemporary natural lawyers have more subtle interpretations of the main tenets of natural law.
-John Finnis views natural law (in its Thomist version) not as a constraint on the legal validity of positive laws, but mainly
as an elucidation of an ideal of law in its fullest, or highest sense, concentrating on the ways in which law necessarily
promotes the common good.

-Dworkin is not a classical natural lawyer, however, and he does not maintain that morally acceptable content is a
precondition of a norm’s legality.
-His core idea is that the very distinction between facts and values in the legal domain, between what the law is and what
it ought to be, is much more blurred than legal positivism would have it: Determining what the law is in particular cases
inevitably depends on moral - political considerations about what it ought to be. Evaluative judgments, about the content
law ought to have or what it ought to prescribe, partly determine what the law actually is.

-Dworkin (1977) argued that the falsehood of legal positivism resides in the fact that it is incapable of accounting for the
important role that legal principles play in the law. Legal positivism envisaged, Dworkin claimed, that the law consists of
rules (all or nothing) only. However, this is a serious mistake, since in addition to rules, law is partly determined by legal
principles (legal reason to decide a case one way or another)

-According to Dworkin’s theory, unlike legal rules, which may or may not have something to do with morality, principles
are essentially moral in their content. It is, in fact, partly a moral consideration that determines whether a legal principle
exists or not. Why is that? Because a legal principle exists, according to Dworkin, if the principle follows from the best
moral and political interpretation of past judicial and legislative decisions in the relevant domain.
-Legal principles, on the other hand, gain their validity from a combination of source - based and content - based
considerations. A combination of facts and moral considerations.

So Separation Thesis cant be maintained anymore? Many Legal Philosophers doubt that there are legal principles as
Dworkin envisaged.
-Legal norms can be more or less general, or vague, in their definition of the norm - act prescribed by the rule, and the
more general or vague they are, the more they tend to have those quasi - logical features Dworkin attributes to principles.
-if you make the legal validity of norms, such as legal principles, depend on moral argument, you allow for the possibility
that an entire legal community may get its laws wrong.
-Dworkin’s Interpretative Theory of Law:

1st thesis is that determining what the law requires in each and every particular case necessarily involves interpretative
reasoning. (Critique: this is only necessary when law is unclear)

2nd thesis is that interpretation always involves evaluative considerations. More precisely, perhaps , interpretation is
neither purely a matter of determining facts, nor is it a matter of evaluative judgment per se , but an inseparable mixture of
both.

*Dworkin maintains that the dependence of legal validity on moral considerations is an essential feature of law that
derives from law’s profoundly interpretative nature. Inclusive positivism, on the other hand, maintains that such a
dependence of legal validity on moral considerations is a contingent matter;

-However, those who believe in moral considerations must hold an objective stance with respect to nature of moral values,
otherwise, since morality is subjective, legality would also be subjective. This would be problematic. Post modernists
think that morality is always subjective and thus, law is also subjective.

The Normativity of Law

-Is it in its coercive aspect?

-Early legal positivists, such as Bentham and Austin, maintained that coercion is an essential feature of law,
distinguishing it from other normative domains, while 20th century LPs deny this.

-John Austin famously maintained that each and every legal norm, as such, must comprise a threat backed by sanction.
This involves at least two separate claims: In one sense, it can be understood as a thesis about the concept of law,
maintaining that what we call “law” can only be those norms which are backed by sanctions of the political sovereign. In
a second, the intimate connection between the law and the threat of sanctions is a thesis about the normativity of law and
how this consists in the subject’s ability to predict the chances of incurring punishment and their presumed desire to avoid
it.

-Hans Kelsen, for instance, maintained that the monopolization of violence in society, and the law’s ability to impose its
demands by vio lent means, is the most important of law’s functions in society. BUT, Hart and Raz deny this.

Is coercion essential to what the law does? And even if it is not deemed essential, how important it is, compared
with the other functions law fulfills in our lives?

The basic insight of Raz’s argument is that the law is an authoritative social institution. The law, Raz claims, is a de facto
authority. However, it is also essential to law that it must be held to claim legitimate authority.

-According to Raz, the essential role of authorities in our practical reasoning is to mediate between the putative subjects of
the authority and the right reasons which apply to them in the relevant circumstances. (e.g. The legitimacy of the legal
speed limit would thus be derived from the way in which it aids people in acting in better compliance with the balance of
the right reasons.)

What kinds of things can claim legitimate authority? There are at least two such features necessary for authority-capacity:
1) Its directives are identifiable as authoritative directives, without having to rely on those same reasons w/c the
authoritative directive replaces
2) it must be capable of forming an opinion on how its subjects ought to behave, distinct from the subjects’ own
reasoning about their rea sons for action; authority requires some authorship.

*Raz’s conception of legal authority provides very strong support for exclusive legal positivism because it requires that
the law, qua an authoritative resolution, be identifiable on its own terms, that is, without having to rely on those same
considerations that the law is there to resolve

-How can a conventional practice give rise to reasons for actions, for obligations?

According to one influential theory, inspired by David Lewis (1969) conventional rules emerge as solutions to large-scale
and recurrent coordination problems. Coordination conventions would be obligatory if the norm subjects have an
obligation to solve the coordination problem which initially gave rise to the emergence of the relevant convention.

It is doubtful, however, that the conventions at the foundations of law are of a coordinative kind. In certain respects the
law may be more like a structured game, or an artistic genre, which are actually constituted by social conventions.
-From a moral point of view, the rules of recognition, by themselves, cannot be regarded as sources of obligation to follow
the law.
-the existence of a social practice, in itself, does not provide anyone with an obligation to engage in the practice.

the rules of recognition cannot settle for the judge, or anyone else for that matter, whether they should play by the rules of
law, or not. They only tell us what the law is. Unlike chess or soccer, however, the law may well be a kind of game that
people have an obligation to play, as it were. But if there is such an obligation, it must emerge from external, moral,
considerations, that is, from a general moral obligation to obey the law.

The Methodology of Jurisprudence

The target of a theory of law

-what phenomenon such theories aim to provide an account of?
There are four main families of views on this question. One view takes jurisprudence to be a form of conceptual analysis,
which is to say that theories of law aim to provide an account of some concept of law. A second sort of view adopts a
more skeptical stance towards the methodology of conceptual analysis and takes theories of law to be in the business of
offering a reductive explanation of law itself, not some concept of it. The prescriptive view takes it that the aim of a
theory of law is to specify the notion of law that it would be most desirable for us to adopt. A fourth kind of view,
associated with Dworkin’s work, takes it that legal theories are in the business of offering a constructive interpretation of
legal practice.

Conceptual Analysis Views

- this sort of view, a theory of law aims to provide an account of the conditions under which the target concept of law (or
one of its cognates) applies.
-The idea is that the theorist starts with a putative set of criteria for the correct application of the target concept, and then
she tests this account against her intuitions about that concept.

-The first understanding of concepts takes concept possession to be mainly a matter of linguistic competence. That is, to
possess the concept of law is to know when the word “law” as used in its juridical sense (not the scientific sense) applies.
- But now a dilemma arises. Either legal practitioners possess the same concept of law or they do not. If they do possess
the same concept, then it seems they cannot fail to agree about what it takes for a norm to count as law=implausible.
-On the other hand, if legal practitioners do not share the same concept of law, then their disagreement about what the
grounds of law are must just be due to the fact that they are talking past one another. But that, too, is implausible.

-This suggests a second, richer form of conceptual analysis that legal theorists might be engaged in: the possession of a
wide range of substantive beliefs or intuitions about the concept, its essential features and its proper application. Tho this
has been criticized. Which concept of law constitutes a proper target of law? Narrow? Broad?
-Why should we care about anyone’s concept of law is anyway? insofar as philosophers (qua philosophers) are interested
in what people believe about a given concept, this would be because understanding people’s beliefs about the concept is a
route to understanding that which it is a concept of. The nature of law itself.

Investigating Law Itself

-not concept of it.
-Reductionist and naturalistic views fall into this category.
-Reductionist views take it that illuminating the nature of law is a matter of explaining what the law is, and how it
operates, in terms of more foundational facts. that is, to show that the phenomenon of law is actually constituted by, and
fully reducible to, some other more foundational type of phenomenon (in the way that chemistry could in principle be
reduced to particle physics).

Naturalized jurisprudence: type of reductionist view which insists that a purely empirical methodology should be used in
explaining the nature of law. Leiter argues that our intuitions about law are too unreliable to be afforded much epistemic
weight. AS opposed to studying judicial behavior. Wouldn’t it transgress the is-ought gap?

The Prescriptive View

-aim of legal theory is to specify a substantive conception of law that it would be especially desirable for people to adopt
-MacCormick suggests that values like autonomy and freedom of conscience demand that the law not regulate with a
heavy hand “the sphere of aspirational values, of duties of self-respect and of duties of love,” a sphere that concerns
“questing for the good beyond duty, or for the right lines of development of a self
-desirable to keep the question of what the law requires entirely separate from the question of what morality requires.
within this sphere of conduct, it is desirable to keep the question of what the law requires entirely separate from the
question of what morality requires.

Constructive Interpretation of Legal Practice

-This view takes it that (i) the target of a first-order theory of law is existing legal practice and (ii) these theories succeed
to the extent that they offer a defensible constructive interpretation (in Dworkin’s sense) of that practice.

-The aim of a legal theory is to reconstruct the behavior and self-understandings of participants in legal practice and,
moreover, to do so in a way that casts this practice in its best moral light.

Is Legal Theory Inherently Evaluative?

- there are a number of uncontroversial ways in which legal theory plausibly is or might be evaluative, and these do not go
to the heart of the methodological debates in jurisprudence.
-it seems that one cannot engage in the business of theorizing about law without evaluating the extent to which various
theories are coherent, simple, clear, elegant, comprehensive, and so on
-A second seemingly uncontroversial way in which legal theory is evaluative is that one cannot begin to develop a theory
of law without determining which of its central features are to be accounted for. John Finnis, for example, argues that one
cannot do first-order legal theory without taking a stand on what the important features of law are that adequate theories
must explain
-A third way in which legal theory could in principle be evaluative is the prescriptive view: if the job of a first-order
theory of law is to identify the concept of law it would be most desirable for us to employ, then there is a sense in which
the resulting theory of law would of course be evaluative.

Does offering a first-order theory of law of either the conceptual analysis, reductive or
constructive interpretation varieties require one to accept claims about how valuable the law, or some feature of it, is?

Conceptual analysis and Reductionist views says that it is possible to give accounts that capture the central features of law
without being committed to any moral or all-things-considered evaluation of the law.

Vs.

One central argument to the effect that legal theory must be evaluative in the relevant sense begins from the idea that
understanding what the law is requires taking a view about what functions it serves.

-attributing a function to something is to endorse a standard by which that thing may be judged as successful or
unsuccessful.

-A second natural argument in favor of seeing legal theory as inherently evaluative in the relevant sense relies on the idea
that any adequate theory of law must take account of the internal point of view that legal practitioners tend to adopt
towards the law, some kind of endorsement towards the law. (BUT, you can explain their reasons without yourself
endorsing the law)
-Dworkin: theory is an interpretive endeavor. This is to claim that fully understanding what the law is requires construing
it as the best instance it can be of the type of thing that it is. To say it is the best requires evaluation. (BUT, saying it’s the
best doesn’t mean you think it’s good. E.g. best fraudster)

-For Dworkin, legal theory is an interpretive enterprise, and offering a constructive interpretation of legal practice requires
construing it in its best moral light. Thus, offering an interpretation of legal practice would require taking a stand on
which of the available ways of construing that practice is morally better than the others.

-In order for a proponent of the argument from interpretation to assert this premise, some rationale would have to be given
for it. That is, some argument would be needed to explain why we should think that understanding law requires giving a
constructive interpretation of it.

Of course, even if the argument from interpretation fails and purely descriptive legal theories remain possible, it could still
be a worthwhile project to attempt to give a constructive interpretation of legal practice, and the output of this project
would indeed be a partially evaluative theory. Nonetheless, these two types of theory would not genuinely be in conflict,
as they would be addressed to answering different questions. In the end, therefore, “methodological pluralism” may be the
most apt characterization of the state of play in jurisprudence.