Philosophy of Law

o Also called jurisprudence

o Investigates the nature of law
o Relation to human values, attitudes, practices and political communities
o Distinguish law from other systems of norms like morality
o Takes conceptual analysis as its principal concern
o Providing a general philosophical analysis of law and legal institutions
Conceptual Analysis
o Distinguishes a number of different purposes
o To track linguistic usage
o To stipulate meanings
o To explain what is important or essential about a class of objects
o To establish an evaluative test for the concept-word
Legal Philosophy
o Analysis of legal interpretation
Political Philosophy
o “what ought to be a person’s relationship to society?”
o Application of ethical concepts to the social sphere
o Deals with variety of forms of government and social existence
o Standard by which to analyze and judge existing institutions and relationships
Applied Ethics
o the concept in question only applies or fails to apply relative to a set of alternatives.
Three categories into which the topics of legal philosophy falls:
a. Analytic Jurisprudence
o provide an account of what distinguishes law as a system of norms from other systems of norms
o concerned with providing necessary and sufficient conditions for the existence of law that
distinguish law from non-law
o provides analysis of the essence of law so as to understand what differentiates it from other
systems of norms
o Natural Law Theory
o concept of law cannot be fully articulated without some reference to moral notions
o theory In ethics and philosophy that says human beings possess intrinsic values that govern
their reasoning and behavior
o Overlap Thesis -> relation between the concepts of law and morality
o Classical Naturalism of St. Thomas Aquinas
o Blackstone: This law of nature, being co-eval with mankind and dictated by God himself,
is of course superior in obligation to any other. It is binding over all the globe, in all
countries, and at all times: no human laws are of any validity, if contrary to this; and such
of them as are valid derive all their force, and all their authority, mediately or
immediately, from this original
o Assumes that everyone believes killing another person is wrong and that the punishment for
killing another person is right
Procedural Morality
o Lon Fuller - law is necessarily subject to a procedural morality consisting of eight
principles
 1. the rules must be expressed in general terms;
2. the rules must be publicly promulgated;
3. the rules must be prospective in effect;
4. the rules must be expressed in understandable terms;
5. the rules must be consistent with one another;
6. the rules must not require conduct beyond the powers of the affected parties;
7. the rules must not be changed so frequently that the subject cannot rely on them;
and
8. the rules must be administered in a manner consistent with their wording.
o no system of rules that fails minimally to satisfy these principles of legality can achieve
law’s essential purpose of achieving social order through the use of rules that guide
behavior
o Legal Positivism
o Opposed to all forms of naturalism
o philosophy of law that emphasizes the conventional nature of law
o law is synonymous with positive norms, that is, norms made by the legislator or
considered as common law or case law
o does not base law on divine commandments, reason, or human rights
The Conventionality Thesis
o a conceptual truth about law that legal validity can ultimately be explained in
terms of criteria that are authoritative in virtue of some kind of social convention
o H.L.A. Hart (1996) believes the criteria of legal validity are contained in a
rule of recognition that sets forth rules for creating, changing, and
adjudicating law
The Separability Thesis
o asserts that law and morality are conceptually distinct
o making only an object-level claim about the existence conditions for legal validity
o Hart describes it as no more than the “simple contention that it is in no sense a
necessary truth that laws reproduce or satisfy certain demands of morality,
though in fact they have often done so”
o Klaus F¸þer (1996) interprets it as making a meta-level claim that the definition of
law must be entirely free of moral notions
o any reference to moral considerations in defining the related notions of
law, legal validity, and legal system is inconsistent with the Separability
Thesis
Inclusive Positivism
o it is possible for a society’s rule of recognition to incorporate moral
constraints on the content of law
o the rule of recognition may incorporate as criteria of legal validity
conformity with moral principles or substantive values
Exclusive Positivism
o denies that a legal system can incorporate moral constraints on legal
validity
o the existence and content of law can always be determined by reference
to its sources without recourse to moral argument
The Social Fact Thesis
 o that legal validity is a function of certain social facts
o John Austin (1995) argues that the principal distinguishing feature of a legal
system is the presence of a sovereign who is habitually obeyed by most people
in the society, but not in the habit of obeying any determinate human superior.
o Austin: rule R is legally valid (that is, is a law) in a society S if and only if R is
commanded by the sovereign in S and is backed up with the threat of a sanction
o Hart: a proposition P is legally valid in a society S if and only if it satisfies the
criteria of validity contained in a rule of recognition that is binding in S
Rule of Recognition
o some feature or features possession of which by a suggested rule is
taken as a conclusive affirmative indication that it is a rule of the group to
be supported by the social pressure it exerts
Rule of Change
o which enables a society to add, remove, and modify valid rules
Rule of Adjudication
owhich provides a mechanism for determining whether a valid rule has
been violated
o Ronald Dworkin’s Third Theory
o adjudication is and should be interpretive
o rejects positivism’s Social Fact Thesis
o there are some legal standards the authority of which cannot be explained
in terms of social facts
o relation between jurisprudence and adjudication
o any judge’s opinion is itself a piece of legal philosophy
o a legal principle maximally contributes to such a justification if and only if it satisfies two
conditions:
1. the principle coheres with existing legal materials; and
2. the principle is the most morally attractive standard that satisfies (1).
The correct legal principle is the one that makes the law the moral best it can be.

b. Normative Jurisprudence
o involves normative, evaluative, and otherwise prescriptive questions about the law.
(a) when and to what extent laws can restrict the freedom of citizens,
(b) the nature of one’s obligation to obey the law, and
(c) the justification of punishment by law.
Freedom and Limits of Legitimate Law
o Laws limit human autonomy by restricting freedom
o Given that human autonomy deserves prima facie moral respect, the question arises as to
what are the limits of the state’s legitimate authority to restrict the freedom of its citizens
Legal Moralism
o the law can legitimately be used to prohibit behaviors that conflict with society’s
collective moral judgments even when those behaviors do not result in physical
or psychological harm to others
o implies that it is permissible for the state to use its coercive power to enforce
society’s collective morality
Legal Paternalism
o it is permissible for the state to legislate against what Mill calls “self-regarding
actions” when necessary to prevent individuals from inflicting physical or severe
emotional harm on themselves.
o For example, a law requiring use of a helmet when riding a motorcycle is a
paternalistic interference insofar as it is justified by concerns for the safety of the
rider.
o “cannot rightfully be compelled to do or forbear because it will be better for him”
o limits to legitimate paternalism:
(1) the state must show that the behavior governed by the proposed restriction
involves the sort of harm that a rational person would want to avoid;
(2) on the calculations of a fully rational person, the potential harm outweighs the
benefits of the relevant behavior; and
(3) the proposed restriction is the least restrictive alternative for protecting
against the harm.
The Offense Principle
o the harm principle does not provide sufficient protection against the wrongful
behaviors of others, as it is inconsistent with many criminal prohibitions we take
for granted as being justified
o By “offense,” Feinberg intends a subjective and objective element:
o the subjective element consists in the experience of an unpleasant mental
state (for example, shame, disgust, anxiety, embarrassment);
o the objective element consists in the existence of a wrongful cause of
such a mental state.