While lawyers and politicians celebrate the virtues of the rule of law, reformers lament its shortcomings, and cynics question its professed equivalence with justice.
Descriptive legal theory seeks to explain what the law is, and why, and its consequences. Normative legal theories, on the other hand, are concerned with what the law ought to be. Put differently, descriptive legal theories are about facts, normative legal theories are about values.
Aristotle devoted less attention to natural law than to the distinction between natural and conventional justice. But it was the Greek Stoics who were particularly attracted to the notion of natural law, where “natural” meant in accordance with reason.
He seems to have meant that laws which conflict with the requirements of natural law lose their power to bind morally. A government, in other words, that abuses its authority by enacting laws which are unjust (unreasonable or against the common good) forfeits its right to be obeyed because it lacks moral authority. Such a law Aquinas calls a “corruption of law.”
But the principles of natural law have been used to justify revolutions — especially the American and the French — on the ground that the law infringed individuals’ natural rights.
Natural law, he contends, teaches us the necessity of self-preservation: law and government are required if we are to protect order and security. Under the social contract, we must therefore surrender our natural freedom in order to create an orderly society. Hobbes’ philosophy is thus somewhat authoritarian, placing order above justice. In particular, his theory is to undermine the legitimacy of revolutions against (even malevolent) government.
He recognizes that we are essentially equal, mentally and physically: even the weakest — suitably armed — has the strength to kill the strongest. This equality generates discord. We tend to wrangle for 3 main reasons: competition (for limited supplies of material possessions), distrust, and glory (we remain hostile in order to preserve our powerful reputations). As a consequence of our propensity toward disagreement, Hobbes concludes that we are in a natural state of perpetual war of all against all, where no morality exists, and all live in constant fear. Until this state of war comes to an end, all have a right to everything, including another person’s life.
The only certain means of avoiding this breakdown in our mutual obligations, he argues, is to grant unlimited power to a political sovereign to punish us if we violate our contracts. And again it is a purely selfish reason (ending the state of nature) that motivates us to agree to the establishment of an authority with the power of sanction. But he insists that only when such a sovereign exists can we we arrive at any objective determination of right and wrong.
Locke portrays life before the social contract as anything but the nightmare described by Hobbes. Locke claims that, before the social contract, life was paradise — save for one important shortcoming: in this state of nature, property was inadequately protected.
Locke advocates a limited form of government: the checks and balances among branches of government and the genuine representation in the legislative would, in his view, minimize government and maximize individual liberty.
The idea that in moral reasoning there can be no rational solutions spawned a profound skepticism about natural law: If we cannot objectively know what is right or wrong, natural law principles are little more than subjective opinion: they could, therefore, be neither right nor wrong.
The Nuremberg war trials of senior Nazi officials regenerated natural law ideals. They applied the principle that certain acts constitute “crimes against humanity” even if they do not violate provisions of positive law. The judges in these trials did not appeal explicitly to natural law theory, but their judgments represent an important recognition of the principle that the law is not necessarily the sole determinant of what is right.
8 ways King Rex fails to make law:
- He fails to achieve rules at all, so that every issue must be decided on an ad hoc basis.
- He does not publicize the rules that his subjects are expected to observe.
- He abuses his legislative powers by enacting retroactive legislation.
- His rules are incomprehensible.
- He enacts contradictory rules.
- He enacts rules that require conduct beyond the powers of the affected party.
- He introduces such frequent changes in the rules that his subjects cannot adjust their action.
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He fails to achieve congruence between the rules as announced and their actual administration.
- Generality
- Promulgation
- Non-retroactivity
- Clarity
- Non-contradiction
- Possibility of compliance
- Constancy
- Congruence between declared rule and official action.
It is important to grasp the purpose of Finnis’s enterprise. He reject David Hume’s conception of practical reason, which maintains that my reason for undertaking an action is merely ancillary to my desire to attain a certain objective. Reason informs me only how best to achieve my desires; it cannot tell me what I ought to desire.
Appealing to the concept of the common good, Finnis develops also his conception of justice. Principles of justice, he contends, are no more than the implications of the general requirement that one ought to foster the common goods in one’s community. The basic goods and methodological requirements ought to thwart most forms of injustice; they generate several absolute obligations with correlative absolute natural rights.
Put simply, legal positivism, like scientific positivism, rejects the view — held by natural lawyers — that law exists independently from human enactment.
Legal positivists also often claim that there is no necessary connection between law and morals, and that the analysis of legal concepts is worth pursuing, and distinct from (though not hostile to) sociological and historical enquiries and critical evaluation.
The indeterminacy of the common law, he argued, is endemic. Unwritten law is intrinsically vague and uncertain. It cannot provide a reliable, public standard which can reasonably be expected to guide behavior. The chaos of the common law had to be dealt with systematically. For Bentham this lay, quite simply, in codification. Legal codes would significantly diminish the power of judges; their task would consist less of interpreting than administering the law. It would also remove much of the need for lawyers: the code would be readily comprehensible without the help of legal advisers.
“Exclusive” because the reason we regard the law as authoritative is the fact that it is able to guide our behavior in a way that morality cannot do. In other words, the law asserts its primacy over all other codes of conduct. Law is the ultimate source of authority. Thus, a legal system is quintessentially one of authoritative rules. It is this claim of authority that is the trademark of a legal system.
Among the numerous elements of his sophisticated philosophy is the contention that the law contains a solution to almost every problem. This is at variance with the traditional — positivist — perception that, when a judge is faced with a difficult case to which no stature or previous decision applies, he exercises a discretion and decides the case on the basis of what seems to him to be the correct answer. Dworkin contests this position, and shows how a judge does not make law, but rather interprets what is already part of the legal materials. Through his interpretation of these materials, he gives voice to the values to which the legal system is committed.
In Dworkin’s vision of “law as integrity,” a judge must think of himself not, as the conventionalist would claim, as giving voice to his own moral or political convictions, or even to those convictions which he thinks the legislature or the majority of the electorate would approve, but as an author in a chain of the common law:
He know that other judges have decided cases that, although not exactly like his case, deal with related problems; he must think of the decisions as part of a long story he must interpret and then continue, according to his own judgment of how to make the developing story as good as it can be.
Dworkin claims that, while rules “are applicable in an all-or-nothing fashion,” principles and policies have “the dimension of weight or importance.” In other words, if a rule applies, and it is a valid rule, a case must be decided in a way dictated by the rule. A principle, on the other hand, provides the reason for deciding the case in a particular way, but it is not a conclusive reason: it will have to be weighed against other principles in the system.
Principles differ from policies in that the former is “a standard to be observed, not because it will advance or secure an economic, political, or social situation, but because it is a requirement of justice or fairness or some other dimension of morality.” A policy, however, is that kind of standard that sets out a goal to be reached, generally an improvement in some economic, political, or social feature of the community.
Principles describe rights; policies describe goals. But rights are trumps. They have a “threshold weight” against community goals. They should not be squashed by a competing community goal.
Law, claims Dworkin, like a novel or a play, requires interpretation. Judges are like interpreters of a developing story. They acknowledge their duty to preserve rather than reject their judicial tradition. They therefore develop, in response to their own beliefs and instincts, theories of the most constructive interpretation of their obligations within that tradition. We should therefore think of judges as authors engaged in a chain novel, each one of whom is required to write a new chapter which is added to what the next co-novelist receives. Each novelist attempts to make a single novel out of the previous chapters; he endeavors to write his chapter so that the ultimate result will be coherent. To accomplish this, he requires a vision of the story as it proceeds: its characters, plot, theme, genre, and general purpose. He will try to find the meaning in the evolving creation, and an interpretation that best justifies it.
Influenced by Kant, Kelsen accepts that we can understand objective reality only by the application of certain formal categories like time and space that do not “exist” in nature: we use them in order to make sense of the world. Similarly, to understand “the law” we need formal categories, such as the basic norm which, as its name suggests, lies a the base of any legal system. Legal theory, argues Kelsen, is no less a science than physics or chemistry. Thus we need to disinfect the law of the impurities of morality, psychology, sociology, and political theory. His “pure” theory excludes that which we cannot objectively know, including law’s moral, social, or political functions. Law has but one purpose: the monopolization of force.
Law as integrity accepts law and legal rights wholeheartedly. It supposes that law’s constraints benefit society not just by providing predictability or procedural fairness, or in some other instrumental way, but by securing a kind of equality among citizens that makes their community more genuine and improves its moral justification for exercising the political power it does.
There are 2 major theories of rights. The first is known as the “will” theory, and holds that, when I have a right to do something, what is effectively protected is my choice whether or not to do it. It accentuates my freedom and self-fulfillment. The second theory, known as the “interest” theory, claims that the purpose of rights is to protect, not my individual choice, but certain of my interests. It is generally regarded as a superior account of what it is to have a right.
“X has a right to do R” could mean 1 of 4 things:
- Y (or anyone else) is under a duty to allow X to do R. This means, in effect, that X has a claim against Y.
- X is free to do or refrain from doing something. Y owes no duty to X. This is a “privilege” though it is often described as a “liberty.”
- X has a power to do R. X is simply free to do an act which alters legal rights and duties or legal relations in general (e.g. sell his property), whether or not he as a claim right or privilege to do so.
- X is not subject to Y’s (or anyone’s) power to change X’s legal position. This is an “immunity.”
Opposites:
- Righ vs. no-right.
- Privilege vs. duty.
- Power vs. disability.
- Immunity vs. liability.
Human rights have passed through 3 generations. The first generation were most ly the negative civil and political rights as developed in the 17th and 18th centuries by Hobbes, Locke and Mill. They are negative in the sense that they generally prohibit interference with the right-holder’s freedom.
The second generation consists in the essentially positive economic, social, and cultural rights, such as the right to education, food, or medical care.
The third generation of human rights are primarily collective rights: right to social and economic development and to participate in and benefit from the resources of the earth and space, scientific and technical information, the right to a healthy environment, peace, and humanitarian disaster relief.
Governments create ministries of “justice” to oversee the administration of the legal system. Alleged offenders are no longer charged or prosecuted, but “brought to justice.” But caution is required. The law occasionally deviates from justice. Worse, it may actually be an instrument of injustice.
Justice, in any event, is a far from simple concept. Most discussions of the subject begin with Aristotle’s claim that justice consists in treating equals equally and “unequals” unequally, in proportion to their inequality.
Justice under the Romans is defined as “the constant and perpetual wish to give everyone that which they deserve.”
The sword signifies the power of those who occupy judicial positions; the scales symbolize the neutrality and impartiality with which justice is served. In the 16th century, artists portrayed her blindfolded to emphasize justice is blind: resistant to pressure or influence.
Modern utilitarians tend to regard Bentham’s version of hedonistic act utilitarianism as rather quaint. Nor is there a great deal of contemporary sympathy for Mill’s form of utilitarianism that distinguishes between higher and lower pleasures — implying that pleasure is a necessary condition for goodness, but that goodness depends on quality of experience other than pleasantness and unpleasantness. This may be because both Bentham and Mill appear to substitute their own preferences for the preferences they believe people ought to have.
Contemporary utilitarians therefore talk of maximizing the extent to which people may achieve what they want; we should seek to satisfy people’s preferences. This has the merit of not imposing any conception of “the good” which leaves out of account individual choice: you may prefer football to Foucault, or Motown to Mozart. But this approach is afflicted with its own problems.
Utilitarianism has the considerable attraction of replacing moral intuition with the congenial down-to-earth idea of human happiness as a measure of justice. But the theory has long encountered resistance from those who argue that it fails to recognize the “separateness of persons.” They claim that utilitarianism, at least in its pure form, regards human beings as means rather than ends in themselves. Separate individuals, it is contended, are important to utilitarians only in so far as they are “the channels or locations where that is of value is to be found.”
Secondly, opponents of utilitarianism claim that, though the approach treats individual persons equally, it does so only by effectively regarding them as having no worth: their value is not as person, but as “experiencers” of pleasure or happiness.
Thirdly, critics query why we should regard as a valuable moral goal the mere increase in the sum of pleasure or happiness abstracted from all questions of the distribution of happiness, welfare, and so on.
Fourthly, the analogy used by utilitarians, of a rational single individual prudently sacrificing present happiness for later satisfaction, is false for it treats my pleasure as replaceable by the greater pleasure of others. Why should we seek to satisfy people’s desires? Certain desires — e.g. cruelty to animals — are unworthy of satisfaction. And are our needs and desires not, in any event, subject to manipulation by advertising?
Another target of critics is the intractable problem of calculating the consequences of one’s actions: how can we know in advance what results will follow from what we propose to do. And how far into the future do — or can — we extend the consequences of our actions?
There are obvious difficulties in attempting to weigh my pleasure against your pain. Similarly, judges or legislators will rarely find it easy to balance between majority’s happiness against a minority’s misery.
Many legal doctrines are based, often unconsciously, on judicial attempts to find the most efficient outcome. Judges frequently decide hard cases by choosing an outcome which will maximize the wealth of society. By “wealth maximization” Posner means a state of affairs in which goods and other resources are in the hands of those people who value them most; that is to say, those who are willing and able to pay more to have them.
Among the central preoccupation of Durkheim is the question of what holds societies together. Why do they not drift apart? His answer points to the crucial role of law in promoting and maintaining this social cohesion. He shows how, as society advances from religion to secularism, and from collectivism to individualism, law becomes concerned less with punishment than compensation. But punishment performs a significant role in expressing the collective moral attitudes by which social solidarity is preserved.
Under the other forms of domination, authority resides in persons; under bureaucracy it is vested in rules. The hallmark of legal-rational authority is its so-called impartiality.
The practical application of the right of man to freedom is the right of man to private property.
The legitimacy of the law, he contends, depends significantly on the effectiveness of the process of discourse by which the law is made. Consequently freedom of speech and other fundamental democratic rights are central to his theory of “communicative action.”
The myth of determinacy is a significant component of the critical assault on law. Far from being a determinate, coherent body of rules and doctrine, the law is depicted as uncertain, ambiguous, and unstable. And instead of expressing rationality, the law reproduces political and economic power.
Look at the law, he argues, from the position of the “bad man”: “If you want to know the law and nothing else, you must look at it as a bad man, who cares only for the material consequences which such knowledge enables him to predict.”
Legal thought is a form of “denial”: it affords a way of coping with contradictions that are too painful for us to hold in our conscious mind. It there denies the contradiction between the promise, on the one hand of, say, equality and freedom, and the reality of oppression and hierarchy, on the other.