Law, Philosophy, Top Stories

What Is the Law?

Recent debates about the looming appointment of Brett Kavanaugh to the US Supreme Court have once again indicated the depth of disagreement amongst American jurists and politicians about what legal officials should do and which legal interpretations are valid. Should a state have an interventionist Court or a restrained one? Is an interventionist Court one that takes a pragmatic approach to the law, or one that stresses paying attention to the so called ‘original meaning’ of legal texts? The intensity of these debates reflects the power granted to many legal officials in the American constitutional order. At different times, judges have handed down enormously consequential decisions that impact the way civil rights are understood, determine whether or not abortion will be legal and accessible, help us to understand the structure of American democracy, and so on. Americans are not alone in deliberating on these hot button issues—criticism of the power of legal officials, and discussion about what constitutes legitimate legal interpretation, also rage in Canada and on the European continent.

These debates belie deeper and more complex questions about the fundamental nature of human institutions and legal or social rules, which only tend to be made explicit in the relatively new discipline of legal philosophy. Legal philosophy attempts to answer questions about the nature of law: what it is, whether or not a coercive legal system is justifiable, whether or not law is reducible to politics, whether or not there are fundamental connections between law and morality, and so on. On the surface these might appear to be strange questions given the prevalence of law in everyday life, and its aspiration to be a fully objective system of social rules applied by legal officials working in state institutions. But as the debates about Kavanaugh’s appointment indicate, these matters are rarely straightforward. Moreover, our opinions about these foundational questions have practical implications—who should be allowed to interpret the law and what constitutes legitimate legal interpretation are often predicated on deeper, though often implicit, opinions about what law is and how it should operate.

In this short piece, I hope to provide a primer on some of the different philosophical approaches to the law. I will discuss three in particular. The first will be the theory that there is a fundamental connection between law and morality. Traditionally, this has been characterized as a ‘natural law’ approach to legality, although, as we shall see, the situation today is considerably more complex. The second will be the approach of the legal positivists, who believe that there is no fundamental connection between law and morality. The legal positivist approach is perhaps the most well-known and heartily invoked amongst contemporary jurists and commentators, for reasons that I hope will become clear. That said, as we have seen with the openly political rhetoric surrounding who should be appointed to the US Supreme Court and other federal courts, the belief that morality and politics are easily separable from law is perhaps less popular in public discourse than it once was. Part of this may be due to the ongoing influence of the third approach I will discuss, if only briefly. This is the approach of the legal realists and critical legal theorists, who believe that law is invariably driven by politics.

Is Law Fundamentally Connected to Morality?

The claim that there is a fundamental connection between human law and morality is perhaps the oldest of the approaches we will look at. It is perhaps best summarized by St. Augustine’s aphorism that an “unjust law is no law at all.” Originally, most authors who held this position were characterized as ‘natural law’ theorists, and this is still the most common characterization to this day.

Natural law positions have their origins in the work of seminal thinkers from a variety of cultural backgrounds. These thinkers include the Indian Emperor Ashoka, who drew on Buddhist philosophy to argue that rulers have obligations to treat their citizens well; Confucian and Daoist authors, who maintained that a viable state is one that reflects the natural harmony of the world; and Greek thinkers such as Plato and Aristotle, who maintained that laws and customs present in any given state should reflect the universal laws that ideally would apply everywhere. During the Medieval Ages, Scholastic thinkers such as Thomas Aquinas developed complex typologies contrasting human law (which was imperfect), natural law (which was knowable by all through the powers of human reason), and divine law (which was knowable through God’s revelations).

During the early Enlightenment, natural law theory took on a new form. It became less concerned with what human beings are and should do according to nature or God, and increasingly concerned with defending the ‘natural rights of man.’ Perhaps the seminal figure in this tradition was John Locke. In his 1689 essay, Two Treatises on Government, Locke argued that all men possess a set of ‘natural’ rights, such as the right to property, which existed prior to the emergence of the state. The justification for instituting the state was to provide greater protection for these natural rights, since they cannot be adequately upheld in a state of nature. Similar claims were made by the American and French Revolutionaries, who justified their violent overthrow of the status quo by claiming that the states they lived in violated the natural rights of men and citizens.

Interestingly, at the height of its ideological and political influence, natural law approaches to rights also began to come under intense intellectual and philosophical criticism from legal positivists (discussed below). As the early Enlightenment gave way to its mature form in the nineteenth century, natural law doctrines lost ground to legal positivism, which was taken as a more scientific and less mystical approach to understanding the law. Around this time, the notions of what the law is and how it should be applied were separated from the more abstract questions about morality that oriented natural law doctrines. Consequently, legal positivism became the governing outlook of many, if not most, legal officials. This persisted until the twentieth century, when the Nazis justified the horrors of the Second World War by claiming they were simply following the orders of law making officials. Deep disquiet about the consequences of such mindless legalism was one of the fundamental motivations behind the shift towards new doctrines emphasizing that law must be connected in some way to morality.

Perhaps the most important figure in the development of these new doctrines was the philosopher Lon Fuller. As a Professor at Harvard law school, Fuller engaged in a lengthy debate with the legal positivist H. L. A. Hart, an exchange which produced a number of articles and, eventually, Fuller’s seminal book The Morality of Law in 1964. Fuller argued that all legal systems which deserve the name must conform to a certain “internal morality.” This includes conditions such as that the law must apply to all citizens, that it must be publicly known, that it must be free of contradictions, and so on. Fuller argued that legal positivists often regard these as mere logical features of legality, when in fact they express law’s internal morality by demonstrating a degree of concern for integrity and the maintenance of order. The Nazis, who applied different standards to different groups of people, summarily ruled based on political whim, and so were not just treating the law illogically, but deviating from the internal morality necessary for their system to even be called law.

Fuller’s arguments have had an impressive legacy though the work of figures like Ronald Dworkin, who argued in Law’s Empire and other books that legality is fundamentally oriented by a moral quest to secure its integrity. The arguments of Fuller and Dworkin differ substantially from those of classical natural law theorists, who are perhaps best represented contemporaneously by John Finnis. Fuller and Dworkin do not believe there exists a natural law or morality that we must objectively discover and apply through legal reasoning. Instead we must develop a moral legal system through cleaning the law of contradictions which destabilize its consistency and integrity.

An approach that stresses a fundamental connection between law and morality is obviously attractive for many reasons. It provides a great deal of conceptual tools to critique what are sometimes called ‘wicked’ legal systems, such as the Nazi and Apartheid regimes. Moreover, it meshes very well with the intuitive sense many of us have that law must be connected in some way to justice, or else what is the point of a legal system? But this approach is also beset by many problems. Fuller provides a thin conception of the ‘internal morality’ of law that may well be universalizable.

But problems emerge is we attempt to connect law to a more robust moral conception, as Dworkin and Finnis both tried to do. What happens if we cannot agree on these moral conceptions? Must we therefore conclude that the connection between law and morality is bunk, since any attempt to connect the two will be similarly skewed? How can we base any stable conception of law on moral notions about which reasonable people are bound to disagree? Questions like these are what prompted the emergence of legal positivism.

Legal Positivism

Legal positivism is perhaps the most prominent approach to law amongst jurists and commentators today. It is predicated on the belief that the existence (or not) of law is a separate issue from whether or not it is moral. To positivists the job of a legal philosophy is simply to describe what law is, while leaving questions about the morality of this or that legal system to ethicists, activists, and civil society.

Legal positivism’s foundational expression appears in the work of Utilitarian philosopher Jeremy Bentham. Like his contemporary Edmund Burke, Bentham was tremendously hostile to notions of natural law and rights. The whole idea of natural rights, and by extension all natural law, he argued, was simply “nonsense on stilts.” Law was what created rights; they did not exist prior to its existence as Locke thought. John Austin, a disciple of Bentham’s, gave legal positivism its classical expression in his clumsily titled book, The Province of Jurisprudence Determined:

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.

To Austin, positivism had the virtue of simplifying and clarifying the nature of legal inquiry. Law was a collection of commands dictated by a sovereign who was respected because they were backed with coercive force. This sovereign might be illegitimate, or pass bad laws, in which case we may justifiably feel inclined to disobey or rebel. But that wasn’t the issue for understanding what the law is. For that, it is sufficient to describe how a sovereign operates and the commands he issues, and to accept that most people tend to obey out of fear of reprisal.

This doctrine has had an immense influence right up to the present day. On the European continent, Hans Kelsen developed a more Kantian influenced variant of positivism in his book The Pure Theory of Law. This is still held up as a seminal work by those who believe law must be an exact and logical ‘science.’ In the Anglo-American world, the work of Joseph Raz and Scott Shapiro carry on in the more empirical tradition first pioneered by Bentham and Hart. Many positivists disagree about fundamental issues in the law. Some, like Kelsen, believe law is best understood rationalistically and logically. For others, like Hart, law is better understood as a sociological phenomenon. Finally, there are disagreements about the function of law in a society. For Shapiro, law is about executing social and political plans effectively. For Hart, law is about how rules function, whether to forbid or allow, and how and when to confer power. But each remains committed to the idea that law can largely be described without recourse to moral notions (at least beyond what Hart would call a “minimum content”).

Legal positivism has two major virtues. The first is its comparative lack of ambiguity relative to natural law doctrines, which tend to get bogged down in unending disputes about what is moral and immoral. To a legal positivist, law is a descriptive phenomena first and foremost and, up to a point, can be approached in a manner similar to a science. Secondly, contemporary legal positivists do not have to justify any given legal system to its subjects. For Austin, Hart, and Raz, it is quite possible for laws to be immoral. In The Authority of Law, Raz even flirts with the idea that we may not have compelling reasons to obey even a just law.

However, legal positivism also is beset by considerable difficulties. The most prominent are those raised by critics like Fuller and Dworkin. Is it really possible that fundamental legal concepts—such as that law must be publicly known, and that it is wrong to charge someone with a crime that was not a criminal act when they committed it—can be disconnected from morality? Then there is the political question: are we in some way abetting a conservative understanding of what law is by refusing to interpret it in light of political and historical contexts?

Conclusion: The Limits of Legal Philosophy

In the very first article I wrote for Quillette, I discussed legal realism and critical legal theory in some depth. For the sake of brevity, I will only summarize my account here. The position of legal realists, like Oliver Wendell Holmes and Jerome Frank, and critical legal theorists such as Duncan Kennedy and Roberto Unger, is that both natural law and legal positivist philosophers fundamentally misunderstand how we should approach legality. They both believe that the correct approach to law will be characterized by logical consistency, whether between objective morality and black letter law in the case of the natural law philosopher, or description and reality in the case of the legal positivist. By contrast, legal realists and critical legal theorists believe it is far more useful and coherent to avoid such abstract approaches to the law entirely. Instead of stressing the need to develop a logical ‘concept of law’ that applies everywhere, we should look at what actual legal officials do and how any given system of law operates in practice.

Moreover, realists and critical theorists argue we should cease believing that any given interpretation of what law is can be value neutral. For instance, they will point to the following paradox: the belief that value neutrality is a disciplinary virtue is itself not value neutral. It involves a complex evaluative judgement about how we should approach a given study to produce desirable outcomes. This is a fascinating problem I hope to discuss in more detail in a future article.

 

Matt McManus is currently Visiting Professor of Politics and International Relations at Tec de Monterrey. His forthcoming books are Overcoming False Necessity: Making Human Dignity Central to International Human Rights Law and What is Post-Modern Conservatism? He can be reached at garion9@yorku.ca or followed on Twitter @MattPolProf

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30 Comments

  1. Farris says

    Does divorcing law from morality ultimately lead to a cost benefit analysis? And if so does such an analysis lead to more powerful interest being able to quash the less powerful or individual interests? For instance when corporate interest attempt to use eminent domain against individuals or small groups. Not trying to make a point but rather trying to better understand each approach.

    • Eric From Chicago says

      A good question. If the law is not tied to morality, then eminent domain seizure of your land doesn’t offend society even though it may offend you.

      When corporations team with elected officials to enact eminent domain for whatever reason, one would hope that morality and the rule of law would apply. However, the interpretation of law becomes lost in the weeds when the company wants your property and you don’t want to give it up. At that point, it’s a mere power struggle, and if the law isn’t moral…you will lose every single time.

      It’s the primary reason I worry about the state of America today. Too few people have a morality drawn from anything more than Fairness and Ending Oppression. They don’t respect Institutional Authority, so who’s morals are the basis for our law?

      That’s where the Founders were brilliant in allowing the majority and sometimes super majority of our elected Representatives to decide…with our inalienable rights gifted from God being first and foremost in their minds when those documents were written.

      If these documents can’t withstand a frontal assault, our nation won’t exist in 50 years. Populism on both sides coupled with Identity Politics will draw out every chromosomal tribal instinct in us and it won’t be pretty.

      Which is why we need to restore a healthy distribution of political ideologies in our body politic and be respectful of opinions other than our own. If we can’t restore this natural distribution over the bell curve…the tribalism will manifest itself into more conflicts and battles on college campuses and town squares.

    • Jason K says

      Yes…it absolutely does. One example see Disney and the history of copyright law. ‘Law’ is simply order as opposed to chaos. It is control. By itself, there is no innate good or evil, only right and wrong. What is right is what is legal, and what is wrong is simply illegal. One could simply argue that those who write law are the arbiters of good and evil. What they make into law is “right” and therefore “righteous”.

      The infamous Dungeons and Dragons alignment grid and memes surrounding it make a very simplified diagram good, evil, law, and chaotic. It’s the same layout as being left or right, but also totalitarian vs libertarian.

      • Eric From Chicago says

        Yes..however..you may be wrong even though you believe yourself to be right. There is no right or wrong unless the community in which you reside comes to a consensus agreement on right and wrong or moral/immoral and puts those morals into codified law, then allocates resources to actually enforce the law.

        It’s where Progressives fall on their faces time after time. They want more tax money from cigarettes because cigarettes are ‘wrong’, then they put in place laws that increase taxes on those cigarettes as well as laws against selling cigarettes that are not taxed. Thus, you end up with Eric Gardner selling ‘onesies’ and the NYC police…enforcing the larger communities morality…on the ground in a choke hold.

        Progressives scream he wasn’t harming anyone or doing anything immoral, or illegal…when in fact he was. He was robbing NYC of the taxes owed from those cigarettes, and the city of NY allocated resources to enforce that law.

        One has to decouple themselves from the context of historical racism by police to understand that right is right and wrong is wrong. If you can’t differentiate between the two except within your own morality..then we have a long long road ahead of us.

        • yandoodan says

          @Eric From Chicago: Progressives scream he wasn’t harming anyone or doing anything immoral, or illegal…

          You are spot on — but wait, there’s more. There is what P.J. O’Rourke calls “The Grandmother Principle.”

          Let’s say a government decides that feeding the squirrels in a certain park is a bad thing, and they pass a civil law against it. Break it and they give you a ticket. Your grandmother likes to feed the squirrels, so she breaks the law. She gets a ticket. She refuses to pay the ticket, and keeps on feeding the squirrels. She gets more tickets and refuses to pay them as well. She gets hauled off to court where a judge commands her to pay her tickets (plus a substantial fine). She refuses to obey the judge. She is now in contempt of court, which she aggravates by continuing to feed the squirrels. So the judge puts her in jail until she pays the tickets. She still refuses, so she stays in jail indefinitely. She has been put in jail for feeding squirrels.

          Is the law important enough that you would send your grandmother to jail? Then it probably shouldn’t exist. This is the Grandmother Principle.

          Note that this example is a civil law. Decriminalizing a law does not affect the Grandmother Principle.

  2. ga gamba says

    Should a state have an interventionist Court or a restrained one? Is an interventionist Court one that takes a pragmatic approach to the law, or one that stresses paying attention to the so called ‘original meaning’ of legal texts?

    The second question, which I suppose was offered rhetorically, strikes me as malformed and heavily biased. Why is interventionist deemed pragmatic? Might it also be idealistic or even reckless? The Constitution is not an outdated document as ‘original meaning’ may imply; it’s a current and relevant document, so the ‘original meaning’ is not of a long forgotten and irrelevant era, it’s the here and now because the Constitution is a living document. You not only pay attention to it, you adhere to the Constitution because it’s the supreme law of the land on which everything else is built. But, if one thinks it’s not up to date, the Constitution is flexible enough to provide procedures to remedy this.

    Those who favour an interventionist approach typically do so because they dislike the fact the framers made the Constitution difficult to change. Yet, these paths to change it exist; I’m sure all school children are taught the two ways. It is the legislature’s and the executive’s role to pass and sign legislation. This is the political process. If a number of people want, for example, the Second Amendment modified or repealed, it’s their duty to make to the case to their fellow citizens and elect a sufficient number of representatives to make the desired change.

    The federal court was designed to be a large step beyond the political process; justices don’t stand for direct election, rather they are ‘elected’ by the people’s representatives. Once. And for life, which is unlike all others. Seeing and using justices as legislators is to give them a role they were not intended to have – unless the Constitution is changed. We elect legislators and the executive at regular and defined intervals because we want them to be accountable directly and frequently to the people. Federal justices do not answer to the people. Having unaccountable people make law is not the intent of a representative democracy. Though the positions are not inherited, because the justice cannot be removed from office (except for extraordinary reasons), making them interventionist contravenes the spirit of republic. They become quasi-aristocrats; just not hereditary ones.

    Though elected representatives, as well as public servants, make a solemn oath to support and defend the Constitution, within moments after their swearing-in ceremony the vow is rubbished and they’re enacting laws and behaving in ways that breach the Constitution. The justices’ role is hopefully to thwart this ahead of time, but if such laws are passed then it’s the justices’ role to evaluate and nullify laws when they contravene the Constitution. When justices are interventionists, the restraint on our elected officials, the “we ought not pass this law because it’ll be tossed out by the Court,” is sidelined in the hope, and perhaps expectation, an interventionist judge will disregard the Constitution. The checks and balances fall by the wayside.

    Where justices ought to be interventionist is sanctioning elected officials who pass laws that contravene the Constitution despite knowing legal precedent has long been established. Finding officials in contempt of court and sentencing them to jail for a while would do more to restore respect for the law of the land than imposing fines, ones that are paid by the taxpayer.

    • You’ve identified a key issue. Isn’t the whole point of the US Constitution to minimize interventionism? The people, by means of their representatives and restrained by the Constitution, are entitled to make the laws. And they are entitled to make stupid laws. Moreover, in a democracy, it may be quite desirable that the people not be protected from suffering the consequences of stupid laws. “If a fool persists in his folly” says one of William Blake’s Proverbs of Hell, “he will become wise”.

  3. Peter from Oz says

    When I studied law all those years ago legal philosophy was called jurisprudence. I remember enjoying the subject immensely, but I kept on coming back to one thing: did any of those pontifcating on the subject actually have a practising certificate?
    If you haven’t actually practised law how do you define it?
    It always seemed to me to that those who would divorce morality from the law haven’t heard of equity, that branch of law that depends upon moral reasoning.

    • Can’t speak for all of them (Raz and Dworkin didn’t practise), but Hart did.

      • Oh, and equity had its roots in arbitrary decisions by Chancery and therefore conscience and still has more elements of it than many other areas coming from the unwritten law, but over time the doctrines have become well-defined. This was most famously done under Lord Eldon (who notoriously appeared in Dickens’ Bleak House), who said he wished for the doctrines of equity to be ‘almost’ as settled as those of the common law – in that he and successive judges seem to have succeeded.

  4. ThereAreDozensOfUs says

    Brilliant article and very well articulated.

    I am a lawyer in South Africa and we are often faced with the lingering problem of morality being inextricably tied to law: we (like England) rely quite heavily on common law for a basis of many of our laws. My personal, loose definition of common law is ‘morals/ethics held commonly and stringently enough by all/most of society to the point where they are elevated to general application [law]’. Common law therefore must have a moral or ethical basis of sorts or else it would not be held as law.

    The complication arises where new, codified law provides for things like gay marriage and various equality provisions that have never been part of the common law (for obvious reasons – these are more recent moral positions people take). Our courts are then often put in an awkward position where they have to almost ‘retcon’ common law to fit with statutory law. It can be frustrating. The most recent poll conducted (2013) actually had most of South Africa’s population against same-sex marriage, despite us legalizing it many years before (and being one of the first countries in the world to do so).

  5. Cerastes says

    I’m not sure if this is useful, but it strikes me that the “science” of law actually bears great similarity to another mis-named field: computer “science”, which is actually more like a specific branch of mathematics.

    The legal positivists are the coders, the ones who care that the system compiles, doesn’t throw errors, efficiently uses computational resources, etc., i.e. focused on the dynamics of the system. The critical theorists are the academics and CS theorists who try to prove optimality, prove security, prove determinacy, etc. (in the mathematical sense of “prove”), i.e. focused on the overarching, unifying rules for all systems. The natural law folks are the ones trying to make sure we don’t build Skynet by accident, or that the algorithm isn’t somehow doing something socially damaging, i.e. making some effort to link things back to ethics and “good” or “bad” outcomes.

    • Cerastes: a wonderful, enlightening and most importantly, entertaining perspective! Thanks for sharing.

    • Not really, because in machine code, everything is determinant, whereas in language, everything is indeterminant. Take “reasonable”–does everyone agree on what is “reasonable” and what is “unreasonable”? If Congress passes an “unreasonable” law, one lacking a “rational basis”, does that mean that the Congressional majority should all be committed to mad house, or does it mean something else? Do you take an opinion poll? Hold a referendum? Or do you ask a group of nine aged and politically-connected millionaires to decide?

  6. The law is nothing more than the state imposing limitations on behavior, using the power of the masses to control, coerce and punish “offenders.”
    No good law violates any notion of human rights or natural law. But rights and natural law of course are only enforced if they are the actual law.
    Politics clearly impacts laws as we have seen the law change over time, and human rights and natural law do not themselves change whimsically.

  7. Part of the issue/problem of law is that law serves of a number of social functions:

    peaceful resolution of disputes;
    providing a sense of retribution to citizens disturbed by criminals;
    providing opportunities for rehabilitation to criminals;
    fostering legitimacy of the state (if law is perceived as administered fairly and impartially);
    preserving class/racial/ethnic stratifications in society;
    preserving socioeconomic privileges (for example, “intellectual property”);

    and I’m just getting started. This makes law basically a kludge, and descriptions either distort its functions (by emphasizing certain aspects over others), or in asserting an “essence” or “purpose” of the law, thereby deny opposing and contrary interests represented by law.

    Interesting you mention Kelsen’s Kantian viewpoint–which I would say is “rationalistic”-without addressing Schmidt’s “decisionism”, as the “state of the exception” appears to be the modern state.

  8. Part of the problem is that while different rules benefit different groups in different ways, the interpretations given to law have objective social consequences (giving rise to differential benefits).

    Law is subject to parasitism, in the sense that a small group gains control over the legal system and interprets in a way that serves its interest while harming the commonweal. The small group tends to be judges, and whatever political and social connections they may share.

    Generally, pluralism is equated with relativism, but in fact, it is the existence of an objective reality that insures pluralism, because of an objective differential benefit to A over B. If everything were relative, then I imagine A could have its cake, and B could eat it too, as it doesn’t have to be zero sum in the imagination. Because it is not notional or relative, or constructed, the A’s will break in support of a rule that helps A to the detriment of B, and the B’s will break in support of a rule that helps B to the detriment of A.

  9. Rich Altmaier says

    I feel the judiciary has an essential duty to protect the minority against the tyranny of the majority. Law is the only thing that stands up for the minority viewpoint, in the face of majority rules and majority votes. Judges must use constitutional principles to protect the helpless against majority votes.

    • Sure you do, but which minority? Railroad executives? Southern Plantation owners? LGBT couples? Christian bakers?

      • Peter form Oz says

        KD
        Any or all them, matey, depending on the circumstances.

    • You sound like Alexander Hamiltion.

      The thing is the minority he was talking about protecting was the minority interests of the wealthy gentlemen of trade and the professions against the majority interests of the 40 shilling freeholders.

      The result was the route of the Federalists in election of 1800 and the Jeffersonian settlement, which lasted until 1900.

  10. Farris says

    Typically morality progresses from strict to less strict. Ex. Permitting gay marriage, or gambling. But such is not always the case. For instance the age for consent to marry consume alcohol or own firearms has steadily increased or become stricter. Perhaps morality is more fluid than we recognize. I’m not convinced the finding a moral basis for laws and decisions is categorically dead. It appears that the law has moved more from a faith based morality to a secular morality. However I do find it disconcerting to claim that the rights of the public are created by the sovereign. These would not be rights but licenses or privileges as they can be taken away by the sovereign.
    “The Nazis, who applied different standards to different groups of people, summarily ruled based on political whim, and so were not just treating the law illogically, but deviating from the internal morality necessary for their system to even be called law.”
    Do we not see this today? When courts routinely base decisions upon the race, class, gender, sexual orientation or abilities of the plaintiff.

  11. X. Citoyen says

    This is an important topic, so I give you credit for raising it. But you shouldn’t have tried to summarize three legal traditions in a short essay. Your treatment of natural law is, to say the least, unsatisfactory. Can anyone here say what natural law is based on your account? I doubt it. The first principle of natural law from Cicero through Thomas is “pursue the good, avoid evil.” I don’t see the point, in this context, of quoting Augustine’s remark.

    There are other issues. Plato and Aristotle didn’t talk about universal laws that ought to be applied everywhere–that makes them sound like neoconservatives avant la lettre. The Asian traditions have had absolutely no influence on Western law, so I fail to see the point of devoting limited space to them. And so on…

    Anyway, your closing remark struck me as particularly naive: “the belief that value neutrality is a disciplinary virtue is itself not value neutral. It involves a complex evaluative judgement about how we should approach a given study to produce desirable outcomes.” Approaching “a given study to produce desirable outcomes” is not value-neutral either. Nor is the simple decision to study instead of not studying is a choice involving a value. It’s values all the way down.

    Many theorists invoke the value-laden claim to attack another position because (pseudo-) relativism is a socially acceptable and therefore persuasive tactic. It always disappears, however, when it gets in the way of their own value-laden argument.

    • X. Citoyen says

      Erratum: “Nor is the simple decision to study instead of not studying a value neutral one.”

  12. The article is a well written summary of the state of current and past ideas about the law, but, I believe, ulimately misleading. The author refers to natual law “theorists” which suggests there is something fundamentally equivalent between them and other more modern theorists – they are all just philosophizing or theorizing about the law. It’s difficult to imagine that St. Augustine or Lao Tzu etc would think of themselves as “theorizing” about anything, as simply having “ideas” about reality.

    The likes of St. Augustine, Lao Tzu, Plato, Aristotle etc. presume a completely different universe than more modern theorists. They all presume reality has a kind of unified Logos or Tao of which we humans are a part – the question is then how do we conform to this reality? The author states this but seems to gloss over its fundamental importance. Modernism (and modern legal theory) presumes no such transcendent order. Indeed, modernism could be characterized as the denial of the Tao or Logos. – we presume to live in a accidental universe from which we can construct (or theorize) our own reality.

    I believe this question must precede any serious discussion of the nature of Law: Is there a Tao or Logos or is there not?

  13. Itzik Basman says

    Simple (minded) comment from a lawyer who in law school studied jurisprudence: this nice essay raises more questions than it answers. Really, how could it not in trying to synthesize for accessibility differing accounts of what law is? All this said, it’s a great introductory overview.

  14. Jason K says

    “Fuller and Dworkin do not believe there exists a natural law or morality that we must objectively discover and apply through legal reasoning. Instead we must develop a moral legal system through cleaning the law of contradictions which destabilize its consistency and integrity.”

    I found this particularly interesting in that it describes how science works. Sometimes, but rarely a legal proceeding is simple enough to determine because all facts are present. But other times, too many variable exist to accurately solve for ‘x’. This is a primary reason (the others being unintelligent or biased, perhaps even despot jurors and judges) why we have mistrials, criminals exonerated, and innocents jailed or executed.

  15. There’s a bit of a preoccupation with hard cases here, as there has been in much legal theory. Many cases decided by courts give judges little discretion. Even where there is discretion, such discretion is not unbounded. These facts tend to heavily blunt the realist/CLS attack. I’d add that the areas where the realist/CLS arguments have the most force is where judges are called on to make normative judgments by the document they are interpreting (the US constitution being a glaring example – I am glad I live in a country without a Bill of Rights and with a dry constitution). More technical laws are likely to have less penumbra, or even to be normatively opaque, and there, again, the realist/CLS attack is muted.

  16. I’ll probably write an article in reply to this one, but here are a few points to “correct” the judiciary:

    1) Judges are forced to adjudicate between customary judge discovered law, regulation, and legislation during a period of rapid social, economic, and political upheaval. In science for example, there is no temporal pressure to produce a decision. In conflict there is temporal pressure to produce a decision. The state has taken on the monopoly of the application of violence, and created a monopoly method of dispute resolution (courts), and created a monopoly body by which to adjudicate such conflicts (law, legislation, and regulation.)

    2) There exists only one universal law of human cooperation. We call that law ‘natural law’. That natural law consists in reciprocity. Reciprocity requires satisfaction of the criteria (a) fully informed, (b) productive, (c) warrantied, (d) voluntary transfer, (d) free of imposition of costs upon the interests of others by externality. One can obtain an interest by bearing a cost (performing an improvement) for the purpose of obtaining an interest; and one can have no interest until one has born a cost to obtain such an interest.

    3) This one law (reciprocity) provides decidability independent of opinion, preference, custom, or presumption of good, and is the reason international law is governed by reciprocity it is the only rule that provides reciprocal (equal) incentive against retaliation for the imposition of costs upon one another. Law evolved, from the first record, to the present, for the purpose of preserving the volume, velocity, and returns on cooperation, and preventing cooperation’s opposite: retaliation cycles that throughout history have produced the deleterious effects of feuds.

    4) Customary Law (especially germanic, if not all european) consists of the discovery and accumulation of applications of this law of reciprocity that we call Tort law. Legislation (command) and regulation (prior constraint) have been given the FORCE of LAW by those whose profit interest – either the population (preservation of returns on cooperation) or the territorial rulers (returns from taxation).

    5) The primary function of RULE has been the preservation of cooperation by use of organized violence to suppress impositions of costs upon the investments of others. This is the role of insurer of last resort of Personal Interests.

    6) The primary function of GOVERNMENT has been the construction of commons and the extraordinary returns produced by commons, while insuring those commons from privatization of commons, socialization of losses into the commons, by the organized use of violence. This is the role of insurer of last resort of the Commons.

    7) The primary function of the STATE, particularly with the advent of paper currency, and now fiat (unbacked) currency (our money consists of nothing but shares in the economy) has increasingly evolved to function as the insurer of last resort against the Hazards of the vicissitudes of nature (disasters, tragedies, accidents, disability, health, old age, and even war).

    8) Rights can only exist (a) by reciprocal exchange of the same obligation, and (b) when insured by a third party with sufficient organized violence to insure and reinforce them. Otherwise they are not rights but impositions by means of command. It is correct to say we create a market ‘demand’ for natural rights, and we create a market demand for human rights, but those rights do not exist until we organize sufficient violence into roles and institutions to exchange and insure those rights: police, sheriffs, soldiery, and judges and the law.

    9) Human rights consist of AMBITIONS that we demand from the Governments of States in order to tolerate their retention of a monopoly of control over a territory. They exist as a postwar attempt to constraint governments to improving their territory, people, and assets by market means, without imposition upon their neighbors. Such rights, likewise, do not exist. But are merely an ambition.

    10) The universal declaration of human rights contains a few provisions that were necessary to obtain the signatures of the then-communist states, that asserted positive rights (obligations to provide for one another without constraint on the reproduction that exhausts the ability to provide for others, and therefore results in the gradual dysgenic decline as we reverse thousands of years of upward redistribution of reproduction back down to the underclasses who are not able to produce sufficient market goods and services to exist without harming the reproduction of the middle and upper classes.) [note: we have reversed the flynn effect and have, even in china, been losing a third of a point of intelligence over a fairly short number of years. The productivity of a people is reducible to the median of the population’s cost of education and training, such that every point below what is today’s 105 and tomorrow’s 110 places an intolerable burden upon the rest of the polity.]

    8) Our American constitution persisted the anglo saxon, germanic, proto-germanic (and possibly proto-indo-european) law of sovereign men limited to acts of reciprocity, and licensed the government to act in their interests to preserve their sovereignty (the original text being ‘life, liberty, property’). Unfortunately at the time the techniques of formal logic, strict constriction from first principles, were not known. We are no longer limited, and there is no reason any and every law cannot be constructed formally from the natural law of reciprocity, producing a complete, consistent, and easily falsifiable body of adjudicatable law. There is no reason any and every act of legislation, and any and every act of regulation, cannot be so constructed. The principle difference under such formal construction is that the one law, discovered application of the one law, regulation to limit hazards of those actions not open to restitution, and CONTRACTS for the production of commons would be consistent, and as such the government could only issue contracts under law, not edicts above that law. (This would destroy the left’s ability to usurp power by democratic means).

    9) The uniqueness of western civilization is reducible to (a) a militia that constitutes the shareholders, (b) individual sovereignty of shareholders, (c) the demand for truth, duty, and reciprocity from one another in mutual insurance of our sovereignty. (d) the dependence upon a jury of sovereign peers for the adjudication of differences, with a judge as referee, (e) And sovereignty results in the necessity of markets for association, cooperation, reproduction, production, commons, and polities. (f) such markets, adjudicated by the law of tort, adapt to change faster than all other methods of human organization. (g) it is this rapidity of adaptation and resulting insulation from corruption and rent seeking that made the west develop faster than the rest in both the ancient world and the modern, with the Abrahamic Dark Age of the Jewish, Christian, and Muslim attacks on the great civilizations, providing the only hindrance. Once north sea trade was reestablished, the saxon commercial order constructed in europe, and the atlantic opened to the age of sail, the west was finally, by the age of napoleon, able to return to Roman levels of institutional sophistication, and universal imposition of law. [note that the west had fertile lands and forests but no flood river valleys to concentrate production, concentrate people, and develop taxation. So while the ancient world could form armies by taxation, western people had to form militias that relied on advanced (at the time) technology that required whole families to pay for. These militias (cattle raiders, sea peoples, vikings, pirates, european explorers ) organized expeditions (raids) but did so voluntarily. There was no other means of organizing other than contract. It was this order that led to our law, our debate, our reason, and from there our science and technology. Western excellence is due to our law – which elsewhere is not contract but command.

    10) The progressives lie to mask what is merely theft – they rely on postmodernism (lying by sophistry), and they rely on marxism (pseudoscience) as well as freudian and boazian pseudoscience. So yes, the Progressives (socialists) lie, but the Conservatives (aristocratics) cannot tell the truth: The truth is quite simple: the reason for the success of western and eastern civilization, and most obviously the ashkenazim, is the upward redistribution of reproduction, and the use of manorialism and taxation to limit the reproduction of the underclass until such point that surpluses are sufficient to continually increase the standard of living through continuous market competition and innovation. Man was not oppressed. The man self domesticated through the same process he used for plants and animals: breeding the best and culling the rest. This is the dirty secret of civilizations.

    11) Sovereignty, Truth, Duty, and Reciprocity produce markets, and markets are eugenic. They are just a peaceful form of eugenics rather than war, enslavement, enserfment. By use of Sovereignty, Truth, Duty, Reciprocity, and Markets western man in the ancient world, and in the modern, dragged humanity kicking and screaming out of ignorance, superstition, hard labor, poverty, starvation, infant mortality, early death,

    12) The chinese are not so inhibited as we are. they do not care about markets other than in their ability to preserve their racially homogenous polity, and return themselves to position of world power to do so. They are actively researching methods of direct improvement while event their one child policy did not help the ongoing decline in the distribution of intelligence. We are doing the opposite, which is undermining the very reason for our evolutionary success, ad the means by which we dragged mankind out of darkness, and we are doing it through immigration of those very peoples who we have spent thousands of years eliminating from our polities. As far as I know anglicans and ashkenazim remain at parity, but the anglos otherwise have lost a full standard deviation or more since the beginning of the industrial revolution. Even the Norwegians are in distributional decline.

    13) The most profitable action any polity can take is to institutionalize benevolent eugenics, and that is to pay the underclasses not to reproduce, and to limit all immigration to skilled professionals, and to push the young and old into the labor force in the less demanding occupations. This is the lesson of our experiment with universal democracy and marxist-postmodernist globalism: dramatic reversal of centuries of civic improvement. At present only the east asians are willing to pay the costs of retaining their accumulated achievements. The eugenicists were right and in retrospect it appears that the Boas, Marx, Freud, Frankfurt, and French Postmodern movements were but reactions against Darwin, Maxwell, Menger, Spencer, and Nietzsche. And the entire postwar period has been nothing but a pseudoscientific and pseudorational attack on western civilization – an effort to repeat the destruction of the civilizations of the ancient world by the same means – false promises. This time with pseudoscience and pseudorational sophisms using the major media instead of supernatural sophisms using roman roads and greek writing.

    Curt Doolittle
    The Propertarian Institute
    Kiev, Ukraine

  17. Charlie says

    American law derives from the Anglo Saxon where the first Five Books of the Old Testament , Four Gospels were combined with tribal traditions. The Law was created by the tribe and agreed by all. The AS were practical people and concerned about freedom, owning property and preventing altercations becoming acts of mass murder. The tribe takes responsibility for avenging the murder of someone, not the members of the family.As early as AD 680 St Wilfred was freeing slaves based on the teachings of the Gospels.

    The first known law was Aethelbert of Kent about -650 AD, Sine of Wessex 750 AD, Offa of Mercia 750 AD, Alfred the Great 870 AD, Edward the Confessor 1050 AD, Henry 1100 Charter of Liberties, Magna Carta 1215 and then continuous evolution until 1298 and Model parliament . English Civil war which re-introduces importance of Magna Carta and there is the Bill of Rights 1689. I would suggest American Constitution is product of the Founding Fathers understanding the Bible, the rise and Fall of Greece and Rome and 1300 years of development of English Law. I suggest that the Founding Fathers had seen how power had returned to the British Monarchy post 1689 and created a Constitution designed to prevent anything similar happening to the Executive and any group in the USA.

    “We the people” is a direct connection to the way tribes of Angles ,Jutes and Saxons drafted their laws. The Founding Fathers were classicists and understood about the rise and fall of Greece and Rome and how people can lose their freedom: Rome started as a Monarchy, became a Republic and then became a dictatorial Empire with the Emperor having absolute and Divine authority. Roman Law became the means of the Divine Emperor imposing his will. The concept of Divine Right of Kings had led to the absolutist monarchy of France.

    I would suggest that freedom of thought, speech and assembly may be more important than democracy as it allows the Truth to be ascertained. The second amendment allows tyrants to be over thrown. People can be bought , blackmailed and intimidated so democracies without the First and Second Amendments can become dictatorships as shown by the rise of Hitler. From 1933, the Nazis used laws to make people powerless. Common Law has a different origin and purpose to Roman Law; the latter is an agreement between free practical people guided by the Bible and tribal tradition, the latter a means of control by a Divine Emperor.

    I suggest that the FF understood how many people desire power; that power corrupts and absolute power corrupts absolutely. Orwell said society should be based upon common decency. Perhaps the Common Law is nothing more than the codification of common decency which is perhaps what the original AS intended.

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