The Nature of Law

The/A Standard Story

Main Question of General

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

Distinctive Features of Law

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

 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
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
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Main Theme 1: Legal Validity

Indexed to time and place (and sphere of activity?)
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)
Legal Philosophers Question
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]
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Two Schools of Thought

Legal Positivism
Traditionally associated with two fundamental
claims
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
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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
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Legal Positivism, contd

Thesis Two: The Separation/Separability Thesis

An implication of the Social Thesis
A conceptual separation between law and morality
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
L has appropriate social source > L has moral merit

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.

Consistent with considerable overlap between law

and morality
E.g. Both law and morality contain norms dealing
with killing, violence, keeping of promises, etc.
Both refer to obligations and rights
Laws are often enacted for moral reasons
Etc.
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Separation/Separability Thesis,
contd
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.)
Without such regulation no one would have reason to
support/submit to law

conceptual necessity; in virtue of what law is

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(Green)

Greens Conceptual
Connections
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 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)

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Separation/Separbility Thesis
So whats left of the Separation/Separability Thesis?
Depends on type of legal positivism
Two main contemporary forms: Exclusive (Hard)
Legal Positivism versus Inclusive (Soft) Legal
Positivism
Exclusive Positivists: Raz, Green, Marmor,
Giudice/Culver
Inclusive Positivists: Hart, Coleman, Kramer,
Waluchow
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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 systems 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
persons beliefs regarding X, etc.
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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 systems
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; Ss 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
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An Implication of ILP
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
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
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Natural Law Theory

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
This crucial condition of legal validity not
merely a function of social convention
A function of the very nature of law
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Natural Law Theory, contd

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
[N.B. Some advocates of NLT dispute that this
accurately captures the central claims of NLT]
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ST. THOMAS AQUINAS

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

HUMAN LAW
Creation of human sovereign (he who has care of
the community)
Should be derived from NL
Two forms of derivation
Deduction
Determination of Common Notions (determinatio)

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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)

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ST. THOMAS AQUINAS NLT

Determination of Common Notions
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
yes to affirmative action?
no to affirmative action (reverse
discrimination)?

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ST. THOMAS AQUINAS NLT

Example 2: NL requires fair tax system
Various possibilities
S1, S2, S3 unfair excluded
S4, S5, S6 all fair
S4 & S5 much more fair than S6
S6 excluded
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
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ST. THOMAS AQUINAS NLT

What if sovereign commits an error in deriving HL
from NL?
Sovereigns directive not valid law
Directive is perversion of law act of violence
Sovereigns 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
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Features of Aquinas NLT

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
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.
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Features of Aquinas NLT, contd

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
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
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Main Theme 2: The Normative

Character of Law
What is the nature of the legal ought of legal
obligation?
Is there is such a thing as a distinctly legal obligation?
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)
Is it to be subject to a sanction for violation of law?
(Austins reductionism)

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Harts Alternative
Hart: neither option is correct
Austins 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
They view themselves as bound by the norm, not any
sanction there might be for failure to comply with it
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Harts 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
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
Harts any reasons thesis

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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 rulegoverned enterprise
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
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Raz: The Service Conception

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
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 its
purporting to provide this service reveals its
(potentially) normative nature
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Raz: The Service Conception

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
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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
authoritys directives than by attempting to
figure out and act upon those dependent
reasons themselves
Example: good financial advisor
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Raz: The Service Conception

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?)
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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 further claims that its directives supersede all
other directives (supremacy)

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Raz: Normative Character of Law

If the laws 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 laws 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
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Consequences/Further Features of
Razs Service Conception of Authority
Laws legitimate authority dependent on successful
fulfillment of its essential, distinctive role
Fulfillment of laws 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
Otherwise authority can no longer successfully
mediate between us and those dependent reasons
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Consequences/Further Features of
Razs 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
Even when it fails to be legitimate, it must be
the KIND of thing that COULD be a legitimate
authority

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Consequences/Further Features of
Razs 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
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
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Consequences/Further Features of
Razs Service Conception of Authority
However, according to ILP its possible that laws
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
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
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Consequences/Further Features of
Razs Service Conception of Authority
Razs 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)

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Consequences/Further Features of
Razs Service Conception of Authority
Separation/Separability Thesis:
Law necessarily claims to be a legitimate authority
But laws 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)
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