(As of 11/02/18) This is a compilation of my personal notes, annotations, and insights from was picked up by a passing vessel, and

nd the prisoners were rescued, still

the cases and readings as well as the discussions in the class of Atty. Villareal. alive, but in the lowest state of prostration.
All for love.
–BB
When they were committed for trial, their prosecution reasoned out that,
if the men had not fed upon the body of the boy, they would probably not
have survived to be so picked up and rescued, but would within the 4
PHILOSOPHY OF LAW days have died of famine. Moreover, Parker, being in a much weaker
condition, was likely to have died before them and in that their acts,
I. “WHY” EXERCISE – “WHY AM I ATTRACTED TO THE LAW?” committed in desperation, were justified by their need to survive as there
Preliminary Questions: was no sail in sight, nor any reasonable prospect of relief. They posited
1. Why Law? Why Law School? that, there was no appreciable chance of saving life except by killing
2. What is so attractive about the Law? someone for the others to eat. The Court at Exeter found Dudley and
3. What makes it different from other things? Stephens guilty of felony and murder.
4. At this point, what is its purpose (for me)?
The said case is elevated for a special verdict.
A. LAW AND NECESSITY
The Attorney General, counsel for the Crown argued that, the law states
CASE (THE QUEEN v. DUDLEY AND STEPHENS) that where a private person acting upon his own judgment takes the life
On 1884, Dudley and Stephens were cast away in a storm in the high of a fellow creature, his act can only be justified on the ground of self-
seas, forced to leave their vessel and transferred to an emergency boat defence. Said principle has no application to the case, as Dudley and
with two other men, Brooks and Parker. They had no supply of water and Stephens were not protecting themselves against any act of Parker.
th
food, except turnips. For 3 days, they had nothing to eat. On the 4 day,
they caught a small turtle, which they ate sparingly to last them the next The counsel for the men, on the other hand, contended that, were
few days. They had no fresh water, except the few they amassed from Dudley, et.al not guilty of murder, at the time when they killed Parker, but
th
the rain. On the 18 day, Dudley and Stephens spoke to Brooks about killed him under the pressure of necessity. They forwarded the position
what should be done if no rescue came; someone suggested that that, necessity will excuse an act which would otherwise be a crime,
someone should be sacrificed to save the rest, but Brooks dissented and entering homicide by necessity as a defense. They claimed that,
Parker was not consulted. The next day, Dudley proposed to Stephens homicide is excusable through unavoidable necessity and upon the great
and Brooks that lots should be cast who should be put to death to save universal principle of self-preservation, which prompts every man to save
the rest, but Brooks refused to consent. The following day, while they his own life in preference to that of another, where one of them must
were talking about having families, it suggested it would be better to kill inevitably perish.
the boy so that their lives should be saved. Dudley proposed that if there
was no vessel in sight by the tomorrow morning, the boy should be killed. Whether they were guilty of murder? NO.
The next day, with no vessel appearing, Dudley told Brooks that he
would get some sleep, while making signs that Stephens and Brooks that In considering the definitions of murder in different books, not one
they should go ahead with the plan. Stephen agreed, but Brooks includes the doctrine that the in order to save your own life you may
dissented once again. Parker who was quite helpless and extremely lawfully take away the life of another, when that other is neither
weak from famine and by drinking sea water was unable to make a attempting nor threatening yours, nor is guilty of any illegal act whatever
resistance. Dudley, with the assent of Stephens, went to the boy, and towards you or anyone else.
telling him that his time was come, put a knife into his throat and killed
him then and there. The 3 men fed upon the body and blood of the boy Looking through jurisprudence, the necessity [that is often considered]
for 4 days. On the fourth day after the act had been committed, the boat which justifies homicide is of 2 kinds: (1) the necessity which is of a
private nature (or, homicide in defense of one’s own life/self
Billie Blanco (1D) | Ateneo Law 2022 | 1
defense); and (2) the necessity which relates to the public justice (*Next Friend: Not a party to the proceeding, nor are they a formally-
and safety. It also expressly stated that, the only justifiable homicide of a appointed guardian; instead, they are considered an agent of the court
private nature is the defence against force of a man's person, house, or whose role is to protect the rights of the incompetent person.)
goods.
 Lord Hale: Extreme necessity does not justify larceny. At the core of the case is the question of whether a monkey may sue
 Sir Michael Foster: “Necessity and self-defense” are convertible humans, corporations, and companies for damages and injunctive relief
terms.
arising from claims of copyright infringement. To answer such question
 Wharton case (cited in Stephen’s digest): Sailors had no right to
throw passengers overboard to save themselves, but the proper requires first an answer to the monkey’s claim has standing.
mode of determining who was to be sacrificed was to vote upon
the subject by ballot, can be an authority satisfactory to a court in Naruto was a 7-year-old macaque in a reserve in Indonesia. In 2011,
this country. David Slater left his camera unattended in the reserve. Naruto allegedly
 Lord Bacon: Necessity is of 3 sorts: 1. necessity of conservation took several photos of himself with Slater’s camera. Slater and Wildlife
of life, 2. necessity of obedience, and 3. necessity of the act of Personalities, Ltd. published the Monkey Selfies in a book that Slater
God or of a stranger.
created. The book identified Slater and Wildlife as the copyright owners
The Court ruled that, deliberate killing of Parker was clearly murder, of the Monkey Selfies. Slater, in certain parts of the book, admits that
unless the killing can be justified by some well-recognised excuse Naruto took the photographs.
admitted by the law. There was no such excuse in this case, unless
the killing was justified by what has been called “necessity.” But In 2015, PETA (People for the Ethical Treatment of Animals) and Dr.
the temptation to the act which existed here was not what the law Antjje Engelhardt filed a complaint for copyright infringement against
has ever called necessity. Slater, et.al a Next Friends on behalf of Naruto. Slater, et.al filed motions
to dismiss on the ground that the complaint did not state facts to
Moreover, though law and morality are not the same, and many
things may be immoral which are not necessarily illegal, yet the establish standing both based on Article 3 and the Copyright Act. The
absolute divorce of law from morality would be of fatal district court granted motion to dismiss. PETA and Dr. Engelhardt
consequence. To preserve one's life is generally speaking a duty, but it appealed on behalf of Naruto, but after filing, Dr. Engelhardt withdrew;
may be the plainest and the highest duty to sacrifice it. War is full of therefore, only PETA remains to be the only “next friend.”
instances in which it is a man's duty not to live, but to die. It is not correct
to say therefore that, there is an absolute necessity to preserve one's life. (1) Whether PETA has “next friend” status to represent Naruto’s
The implications to claim otherwise raise the following questions:
copyright claims? NO.
Who is to be the judge of this sort of necessity? By what measure is
the comparative value of lives to be measured? Is it to be strength, (2) Whether Naruto can sue Slater for damages? NO.
or intellect, or what? It is plain that the principle leaves to him who
is to profit by it to determine the necessity which will justify him in The Court ruled that, PETA cannot validly assert “next friend” status to
deliberately taking another's life to save his own. represent claims made for the monkey both (1) because PETA has failed
to allege any facts to establish the required significant relationship
Dudley and Stephens are GUILTY of murder.
between a next friend and a real party in interest, and (2) because an
animal cannot be represented, under the law, by a “next friend.”
B. A MATTER OF DEFINITION  In order to establish next-friend standing, the following must be
shown: 1. Petitioner is unable to litigate his own case due to
CASE (NARUTO, BY AND THROUGH HIS NEXT FRIEND* v. SLATER) mental incapacity, lack of access to court, or other similar
Billie Blanco (1D) | Ateneo Law 2022 | 2
 disability; and 2. the next friend has some significant relationship fundamentally alter the litigation landscape. Institutional actors
with, and is truly dedicated to the best interests of the petitioner. could simply claim some form of relationship to the animal or
o PETA does not have to claim a relationship with Naruto object to obtain standing and use it to advance their own
that is any more significant than its relationship with any institutional goals with no means to curtail those actions.xxx
nd
other animal. PETA fails the 2 requirement and cannot
sue as Naruto’s next friend. This literally creates an avenue for what Chief Justice
o But, even if PETA had alleged a significant relationship Rehnquist feared: making the actual party in interest a
with Naruto, it still could not sue as Naruto’s next friend. “pawn to be manipulated on a chessboard larger than his
 “[T]he scope of any federal doctrine of ‘next own case.”
friend’ standing is no broader than what is
permitted by the… statute.” C. LAW, JUSTICE, AND SOCIAL ORDER: WHERE DOES BATMAN
o Although Congress has authorized “next friend” FIT IN?
lawsuits on behalf of habeas petitioners and on
PATTERSON’S “NO MAN’S LAND: SOCIAL ORDER IN GOTHAM
behalf of a “minor or incompetent person,” there is
CITY” (PART TWO OF WHITE AND ARP’S BATMAN AND
no such authorization for “next friend” lawsuits PHILOSOPHY: THE DARK KNIGHT OF THE SOUL)
brought on behalf of animals.  Gotham* and New Orleans** as No Man’s Lands
 The court in Cetacean did not rely on the fact that the statutes at (*Post-earthquake; **Post-Hurricane Katrina)
issue in that case referred to “persons” or “individuals.” Id. o What happens to social order? Do human beings resort
Instead, the court crafted a simple rule of statutory interpretation: to a more primal, violent nature in our struggle to
if an Act of Congress plainly states that animals have survive?
o Anarchy as the absence of order
statutory standing, then animals have statutory standing. If
o THOMAS HOBBES
the statute does not so plainly state, then animals do not  Human beings in natural state are inclined to
have statutory standing. The Copyright Act does not war and distrust.
expressly authorize animals to file copyright infringement  Human life is a competition to obtain power; life
suits under the statute. is a struggle over a limited number of material
goods.
The Court ruled that, the district court did not err in concluding that  “Fear motivates us to seek peace; we agree to a
social contract out of a desire to preserve own
Naruto—and, more broadly, animals other than humans—lack statutory
lives in a social order.”
standing to sue under the Copyright Act.  Leviathan: Sovereign power that preserves the
order and protects those subjects who have
In the concurring opinion of Smith: willingly submitted to that rule
Animal-next-friend standing is particularly susceptible to  William Petit versus Jim Gordon: Violence in the Quest for
abuse. Allowing next-friend standing on behalf of animals Justice
allows lawyers (as in Cetacean) and various interest groups o How to oppose anarchy?
(Gordon and Petit start out on the same side; they are
(as here) to bring suit on behalf of those animals or objects
both seeking to reclaim Gotham and rebuild social trust
with no means or manner to ensure the animals’ interests in the police force. But as the plot progresses, the radical
are truly being expressed or advanced. Such a change would difference between Petit and Gordon is revealed—that

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 is, difference in tactics in reestablishing a sovereign o Superman as “legitimate” (as his use of force is licensed
power over chaos.) and is an agent of the state) vs. Batman as “illegitimate”
2 Ways that Sovereignty can come to power (in (who are not licensed)
Hobbes’ Leviathan) o MAX WEBER
1. PATERNAL POWER (Gordon)—People can agree  State as the institution that holds a
to a rule; and monopoly on the legitimate use of coercion
2. DESPOTICAL POWER (Petit)—Ruler can seize in a given territory
power through intimidation and force  Through the police and military, the state—and
o Violence as disruption of order only the state—may enforce authority.
 Petit: The only way to deal with criminals is to  The use of violence by non-state actors
exterminate them (*Parallel to the Duterte (territorists, revolutionaries, criminals, and
administration’s approach to the War on Drugs) vigilantes) occurs, and may even be
 In contrast to the excessive violence, understandable on occasion, but it can never be
competition, and hatred expressed in the activity legitimate.
of the gangs and the power maneuvers, there  Batman as subversive  Concept of order and
are still stories of compassion. Without the good goes beyond the state; his use of
compassion, there is only insecurity (i.e., Father violence is in addition, though not in
Christian and Dr. Leslie Thompkinds). coordination, with the state
o Role of security in society  What the society lacks, o “Law and order”
Batman supplies.  State as the only location of law and order 
 Batman learns to work within the system of But, if only the state can legitimately enforce the
gangs, acknowledging that people feel lost law, and use violence in the process, logically
without loyalty to a leader (a sovereign) who can any other violence is illegitimate and criminal,
protect them and help distribute goods justly. regardless of whether it produces good results.
 “Batman must first dismantle their systems of  Even if Gotham is safer because of Batman, it is
oppression to establish a new order.xxx The no more “orderly”—it has explicitly accepted the
rebuilding of Gotham is a long, tortuous road, idea that one individual can use violence
with many sacrifices along the way.” legitimately.
o “Batman’s ultimate enemy is chaos: Arkham’s criminally  Hobbes: “Without a state to enforce order, life is solitary,
insance celebrated in crippled Gotham, a city ruled by poor, nasty, brutish, and short.”
anarchy. Batman’s crusade is not only against them, but o Humans have unlimited liberty, but they are guided
more important, against what they represent. Though we by passions, and liberty soon becomes license, and
often take social order for granted, we may also have a the state of nature becomes a war of all against all.
deep-seated fear about whether we could survive if that o It is so oppressive that man will cede virtually all of his
order were ever to crumble.” liberties to a sovereign so that order can be established.
o “Hopefully, we will have our own heroes in these o “Though they have the ability to enforce law, establish
moments of trial, common people who will rise to the order, and protect citizen life, they allow a state of
challenges.” license to prevail in Gotham because it allows cover for
their activities. Rather than the state ending the chaos of
SPANAKOS’ “GOVERNING GOTHAM” (PART TWO OF WHITE AND the state of nature, as Hobbes hoped, the state itself is a
ARP’S BATMAN AND PHILOSOPHY: THE DARK KNIGHT OF THE participant in the war of all against all.”
SOUL)
 Legitimacy and Violence
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 o The state, as the Reaper sees it, has turned the world
upside down and forgotten that it exists to prevent a war
of man and against man.
 Anti-Batman
o FRIEDRICH NIETZSCHE
 State as a threat to individual self-expression
and self-overcoming
 Anarky: Aims to bring “freedom” to people who
are enslaved by an order perverted by politics,
religion, and capitalism
 Anarky’s search for an organizing principle that
is less repressive than the state fails; the
anarchic order that Anarky tries to impose s
worse than the one he tries to replace
o The state is not the only agent that can legitimately use
violence (as Weber held), and it does play a constructive
role in providing order (against Nietzsche). But, society
also has a role to play in providing security.
o Batman always violates criminal’s civil rights, since he
has no authority to act as an agent of the law, and
Gordon knows that, but he does not place right and the
law before justice and order.
o Lana Lang in defense of Batman: “We live in a
shadow of crime… with the unspoken understanding
that we are victims—of fear, of violence, of social
impotence. A man has risen to show us that power
is, ad always has been in our hands. We are under
siege—He’s showing us that we can resist.”
o No state can claim that it can guarantee both law and
order flawlessly all the time. To a certain extent, society
must participate in its own defense, and it is pointed out
how very important personal relationships and trust are
in establishing the line between the just use of violence
and the proper enforcement of law.

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II. THE “IDEA” OF LAW – IS IT NECESSARY? IS IT A MATTER OF condition in situations external to man—or, in man’s
FORCE? (INITIAL MUSINGS ON THE NATURE OF LAW) social environment
 The Law and the Forces of Evil
A. LLOYD’S “THE IDEA OF LAW” (CHAPTERS 1 AND 2) o Law as a means of attaining social harmony by curbing
CHAPTER 1: IS LAW NECESSARY? the evil passions of man
 Inquiry to “the idea of law”  Is the law necessary?  2 starting points: 1. Man’s nature was
o Is law unnecessary to the creation of a just society? Or, intrinsically evil and that no social progress
is the law positively evil in itself and a “dangerous could be attained without the restraints of
impediment to the fulfilment of man’s social nature”? penal laws; 2. Man was originally created
 Every age produces individuals and groups who feel a general good by nature, but that due to sin,
restlessness against all authority and who respond to this feeling corruption, or some other internal witness,
by giving vent to various acts and demonstrations against the man’s true and original nature became
forces of law and order. distorted and thus, there is a need for its
o It is necessary to look beyond the external control through the rigours of a punitive
manifestations of social restiveness and delve into the system.
ideological foundations of dissatisfaction with the very  Legists: Man’s nature was initially evil and that
idea of law. the good ways in which it has acted were due to
 Are we to reject law altogether or to regard it as the influence of the social environment (e.g.,
at best as a necessary evil suited only to an teaching of rituals and the restraints of penal
utterly imperfect state of human society? laws).
 The Nature of Man  Shastras (writers in India): Men are by
o Idea (or, concept) as being ‘ideological’  Forms part of themselves passionate and covetous and that if
our outlook upon the world, upon the relation of man to left to themselves, the world would resemble a
the world and to society in all its manifestations ‘devil’s workshop’, where the big fishes would
o Idea of law as partaking an ideological character eat up the small ones.
 As a consequence, our view will be inevitably  Bodin: The original state of man as one of
colored by our general thinking about man’s disorder, force, and violence.
place in the work, the view we may adopt of the  Hobbes: Life of the primitive man as a state of
nature f man, or of the ‘human condition’ perpetual warfare, where the individual
 When we assert that law is either is, or is not existence is ‘brutish, nasty, and short.’
necessary to man, we are engaged in a process  Hume: Without law and coercion, human society
of evaluation. could not exist and so in this sense, law was a
 What we are really saying is that man’s nature is natural necessity for man.
such that he can only attain a truly human  Machiavelli: Man are naturally bad and will not
condition given the existence or non-existence observe their faith towards you, so you must, in
of law. the same way, not observe yours to them.
o For those who see man as the incarnation of evil (or  Seneca: Social evils and the necessity for the
at best, an anagram of good and evil, where the bad introduction of a regime of law to the corruption
prevails over the good)  Law as an indispensable of human nature from its initial state of
restraint upon the forces of evil innocence due to the vice of avarice.
o For those who see man as inherently good   Fall of Man (Bible): Law as a natural necessity
Seeking the sources of the ills of man’s present after the Fall to mitigate the evil effects of sin.

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  Augustine: State-law and coercion were not in under which men and women may mate and live together;
themselves sinful but where part of the divine rules governing family relationships; conditions under
order as a means of restraining human vices which economic and food-gathering or hunting activities are
due to sin. to be organized; and the exclusion of such acts which are
 Aquinas: State is not a necessary evil, but was regarded as inimical to the welfare of the family, or of larger
a natural foundation in the development of groups such as the tribe or the whole community.
human welfare. Thus law, is not a purely o The idea that human society could ever conceivably
negative force, for the restraint of evil, but as a exist on the basis that each man should simply do what
positive instrument for realizing those goals he thinks is right is a society not without order, but the
towards which man’s good or social impulses very negation of society.
tend to direct him.
 Is Man Naturally Good? The Anarchist’s Viewpoint CHAPTER 2: LAW AND FORCE
o Because it is the social environment that is responsible  Can the idea of law be divorced from a regime of coercion?
for the evils of man’s condition, the existence of a regime  Ancient Mesopotamia: Anu (god of the sky) and Enlil (god of the
of law then is imposed by force from above storm)
o Plato: In a state without law, the inner harmony is o The universe was regarded as a state in which God
derived from human reason carried to its highest ruled, but a distinction emerged between the role of the
potential of development by a succession of philosopher- 2 principal deities in the hierarchy.
kings chosen for their wisdom and knowledge.  Anu as authority  Issued decrees which
o Smith (Theory of Laissez Faire): All government and commanded obedience by the very fact of
law were in principle evil in so far as they constricted or having emanated from the supreme divinity
distorted the natural development of the economy and of  Enlil as coercion  Executed the sentences of
society (Theory strongly favoured the use of coercive god and leads them in war
law for the protection of private property, which it o The myths of Anu and Enlil reveal the deeply felt
regarded as an indispensable feature of a free market.). human need for order and the concomitant belief
o Godwin: The evils of society arose not from man’s that such order demands 2 elements: (1) authority;
corrupt or sinful nature but from the detrimental effects of and (2) coercion.
oppressive human institutions.  AUTHORITY
o Tolstoy: Private property is wrongful, and that the police o There is much more involved in the idea of law than
and the law-courts are part of an immoral regime of simple obedience.
coercion. o Some people is entitled to require the obedience of
o Marx (<3): Law was nothing but a coercive system others regardless of whether those other persons are
devised to maintain the privileges of the property-owning prepared to find the particular order or rule enjoined
class; by the revolution a classless society would be upon them as acceptable or desirable or not.
brought into being, and law and the state would wither o “A peculiar aura or mystique” investing the lord, the
away as being no longer needed to support an policeman, or the judge, which arouses a certain
oppressive regime. response on the part of the other party  Giving orders
o Sir Herbert Read on Anarchism: Refers to a society (superior party), which the other feels obliged to
without an arkhos, that is to say without a ruler. (It does obey (inferior party)
not mean a society without the law and therefore, it does o What is the source of the obligation which is apparently
not mean a society without order.) imposed or assumed to be imposed on the subject?
 In any society, whether primitive or complex,, it will be  Preliminary answer: What the obligee feels is
necessary to have rules which law down the conditions that he is under a moral duty to obey.
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o Connection between the idea of a legal authority institutional character of authority has largely if
(which as to be obeyed because of its very legitimacy) not wholly displaced the personal one.
and moral obligation (which imposes a rule that calls  Laws, as we are told, are legitimate if it
for voluntary adherence by virtue of intrinsic rightness) conforms to those rules which prescribe the
 Both are treated as binding because of procedures to be followed; and an enactment is
something in them which without any force or legitimate if it conforms to those rules which
physical necessity seems to require obedience. prescribe the procedures to be followed.
 BUT, legitimacy and morality are not to be o Weber’s analysis not meant to be a historical evaluation,
equated to each other  There are 2 spheres but rather, establishing ‘ideal types’—or, the full
of lawful authority and morality, while closely development of possibilities.
interconnected are none the less separable o Weber acknowledges that his ideal types do not occur in
and distinguishable. history as much but always in combinations of varying
o Weber: Authority (or, legitimate domination) as taking 3 degrees of complexity.
forms—1. charismatic, 2. traditional, and 3. legal e.g., German Nazi  Combination of personal charisma
(1) CHARISMA + legal domination
 Charismatic is formed from the Greek word,  FORCE
‘charisma’, which means grace. o Societies may exist which, without being in a state of
 Weber uses ‘grace’ to refer to that peculiar form anarchic disruption, still lack, so far as the bulk of their
of personal ascendancy which an individual may population is concerned, a belief in the legitimacy of the
acquire in a particular society, and which confers authority that controls them.
an indisputable aura of legitimacy all over his o Is law nothing more than rules which coercion can
acts. impose? Or, is law really conceivable, or at least
e.g., Hitler possible in any practical sense, when it is not ultimately
backed by effective force?
(2) TRADITIONAL DOMINATION o Force of law  Rules which are capable of being
 Weber points out that, authority derived in the enforced by coercion
first instance from the personality of the leader  Argument vs. coercive character of law: Any
may pass, if in an attenuated form, to his force or violence is wrong in itself and that law
successors. which rests ultimately on violence must offend
 The original charisma, which enabled their the principles of true morality; thus, force
founder to dominate his followers will become becomes the very negation or breakdown of law.
‘institutionalized’—it will become embodied in  The problem, however, is that, such an
certain permanent institutions, which will be approach becomes merely a semantic one in
formed largely by traditional usages. that sense that it may come down to the refusal
e.g., Monarchies to accept any definition of law other than one
(3) LEGAL DOMINATION which extends only to the moral law*.
 The form of domination, which Weber describes (*Moral law understood as rule based not on
as ‘traditional’, and which is a complex of force but on conscience—or, the mainspring of
personal and institutional elements, may morality.)
gradually merge into the more developed form o What is clear is that there needs to be established a
 Under this system legitimate domination has particular kind of relationship between law and morality,
become impersonal and legalistic so that the and the question of the role of force in a legal system
thus becomes a subsidiary issue in that main question.
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 o It can be argued that people obey the law not because CHAPTER 2: LAWS, COMMANDS, AND ORDERS
they are constrained to do so by force, but because they CHAPTER 3: THE VARIETY OF LAWS
consent or at least acquiesce in its operation and it is *See page 26 for summary on Hart’s discussion (vis-à-vis Austin’s)
this consent rather than any threat of force which causes
the legal system to work (i.e., social contract theory). C. HOLMES’ “THE PATH OF LAW”
o Since the fiction of a social contract has been  The reason why it is a profession, why people will pay lawyers to
abandoned, it has been replaced in democratic societies argue for them or to advise them, is that, in societies like ours
by the idea that universal suffrage and majority rule is the command of the public force is intrusted to judges in certain
the means by which the individual can manifest his cases, and the whole power of the state will be forth, if
adhesion to the operative system of government. necessary, to carry out their judgements and decrees.
o The existence of legal coercion is relegated to a mere  Object[ive] of the study  PREDICTION (Prediction of the
matter of incidental procedure, not in any way essential incidence of the public force through the instrumentality of the
to its existence. courts.)
o The question remains as to what justification there o Means of study: Body of reports, of treaties, and of
may be at the present day for insisting on the statutes
inclusion of the element of coercion in our model of o “oracles of law”
the law.  Far more important and pretty nearly the whole meaning of every
 Much of the authority of the law gains by the new effort of legal thought is to make these prophecies more
availability of machinery of regular enforcement. precise, and to generalize them into a more thorough
 Aristotle: Man is a political animal. connected system.
o It is true that it is always open to us to hope that human  Evil effects of the confusion between legal and moral ideas 
nature may change and that a new and more Consider the right or duty as something existing apart from and
harmonious social order may eventually prove independent of the consequences of its breach, to which certain
practicable… [i]f we believe that a new order of society sanctions are added afterward.
will ultimately dawn which will banish the need for  A legal duty is nothing but a prediction that if a man does
repression then our model may call for radical revision. or omits certain things he will be made to suffer in this or in
For the present, however, a strong measure of that way but judgement or of the court; and so, of a legal
scepticism seems justified. right.
o Rules about force  Prediction  A finite body of dogma
 Force was never intended or at least has ceased o Law as a study of the body of dogma or systematized
to be an essential feature of law. prediction
 (1) In the case of a developed political system, o “BUSINESS-LIKE UNDERSTANDING”: Man’s desire to
what we have designated rules about the use of use it as an instrument of business
force may be properly broadened to cover all the  Under the limits of law
procedural apparatus of law; and (2) The  Confusion between morality and law
importance of the element of coercion in law has o A bad man has as much as a reason as a good one for
something been misunderstood or stretched so wishing to avoid an encounter with the public force.
as to imply that no rule whose breach cannot  A man who cares nothing for an ethical rule is
entail the application of state force (or, a likely to care about a good deal to avoid being
sanction) can be regarded as rule of law. made to pay money, and will want to keep out of
jail if he can.
B. HART’S “THE CONCEPT OF LAW” (CHAPTERS 2 AND 3)
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 “The law is the witness and external deposit of our moral o “Even if every decision required the sanction of an
life. Its history is the history of the moral development of the emperor with despotic power and a whimsical turn of
race. The practice of it, in spite of popular jests, tend to mind, we should be interested nonetheless still with a
make good citizens and good men.” view of prediction in discovering some order, some
o Law is full of phraseology drawn from morals, and by the rational explanation, and some principle of growth for
mere force of language continually invites us to pass rules.”
from one domain to the other without perceiving it, as we  In every system, there are such explanations
are sure to do unless we have the boundary constantly and principles to be found.
before our minds. o Fallacy  Notion that the only force at work of the
o Common in legal reasoning is to take these words in development of law is logic.
their moral sense  There is a fixed quantitative relation between
 When we speak of the rights of man in a moral every phenomenon and its antecedents and
sense, we mean to mark the limits of consequences.
interference with interference with individual  Law of cause and effect
freedom, which we think are prescribed by o In a broad sense, it is true that law is a logical
conscience, or by an ideal. development.
o No one will deny that wrong statutes can and are  Training of lawyers  Training in logic*
enforced, and we would not agree as to which were the (processes of analogy, discrimination, and
wrong ones. deduction)
 What constitutes the law? A system of reason, that it is a o Battle grounds, where the means do not exist for the
deduction from principle of ethics or admitted axioms or what determination that shall be good for all time, and where
not, which may or may not coincide with our decisions. the discussion can do no more than embody the
 Content of law  Morals? preference of a given body in a given time and place.
 Test of legal principles  Whether or not conduct is legally  “We do not realize how large a part of our law is open to
wrong or right? Whether or not a man is under compulsion reconsideration upon a slight change in the habit of the public
or free? mind. No concrete proposition is self-evident, no matter how
 LAW OF CONTRACT ready we may be to accept it.”
o The duty to keep a contract at common law means a  “I cannot but believe that if the training of lawyers led them
prediction that you must pay damage if you do not keep habitually to consider more definitely and explicitly the social
it—and nothing else. advantage on which the rule they may lay down must be
o In the law of contract, the use of moral phraseology led justified, they sometimes would hesitate where they are non-
to equal confusion. (*Morals deal with the actual internal confident, and see that really they were taking sides upon
state of the individual’s mind.) debatable and often burning questions.”
 NARROW PATH OF LEGAL DOCTRINE  2 PITFALLS  ON LAW AS A SUBJECT FOR STUDY, AND IDEAL TOWARD
1. Danger, both to speculation of confounding morality with the WHICH IT TENDS
law; and o Development of law  Each generation taking the
2. Danger that a given system can be worked from general inevitable next step; obeying law of spontaneous growth.
axioms of conduct. o “Most of the things we do, we do for no better reason
 What are the forces which determine its content and growth? than that our fathers have done them or that our
 All laws emanates from the sovereign (Hobbes, Bentham, and neighbors do them… the reason is a good one, because
Austin.) our short life give us no time for a better, but it is not the
best.”

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 o It is true that a body of law is more rational and more
civilized when every rule it contains is referred
articulately ad definitely to an end which it subserves
and when the rounds for desiring that end are state or
are ready to be stated in words.
o If we want to know why a rule of law has taking a
particular shape, and more or less, if we want to know
why it exists at all, we go to tradition.
o The rational study of law is still to a large extent, the
study of history.
 “History must be part of the study because
without it, we cannot know the precise scope of
rules which it is our business to know.”
 Part of our rational study  First step towards
an enlightened scepticism, that is, towards a
deliberate reconsideration of the worth of those
rules
o Doctrine of consideration is contrary to the general
tendency of law
 “We must be aware of the pitfall of
antiquarianism, and must remember that for our
purposes only our interest in the past is for the
light it throws upon in the present.”
 “In the present state of political economy,
indeed, we come again upon history on a larger
scale, but there we are called to consider and
weigh the ends of legislation the means of
attaining them and the cost.”
 Jurisprudence  Law in its generalized part
(Every effort to reduce a case to a rule is an
effort of jurisprudence.)
 “One mark of a great lawyer is that he sees the
application of the broadest rules.”
 Theory is the most important dogma of law.
 “We cannot all be Descartes or Kant, but we all want happiness.
And happiness xxx cannot be won simply being counsel for great
corporations and having an income of $50,000.”
 “It is through them that you not only become a great master in
your calling, but connect your subject with the universe and
catch an echo of the infinite, a glimpse of its unfathomable
process, a hint of its universal law.”

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III. JUSTICE AND LAW  “This is to be a person. There must be a reason why humans act
A. DE PEDRO’S “PERSON AND LAW (LECTURE 2) like that, and not like little dogs, crocodiles, or birds; why they are
2.1: JUSTICE AS THE RESULT OF ORDERLY INTERPERSONAL responsible and free; can love and hate; communicate in truth or
RELATIONS in falsehood; act with a purpose in mind, and not out of
 Plato: Each man is to be given what is due to him. compulsion; possess a sense of personal dignity; and find out
 Virtue of justice (meaning, habitually giving what one is due) that there is a law to be respected in their mutual relations; why
o Even if to be good is much more than to be just, a man they should be willing to accept obligations founded on authority
who is just is ordinarily considered to be a good man. considered to be legitimate. It is impossible to discern among
 Western civilization animals not even one of the above-mentioned characteristics.
o Built upon the conviction that certain things are due to Therefore, we have concluded ever since that there must be
each man for the sake of being a man and that other something that makes us specifically different from them.”
men ought to give them to him, because they belong to
him. 2.3: RATIONAL SOCIABILITY
 Opus justitiae, pax: Peace is the fruit of justice.  Justice is relational
o What is peace? Peace is the tranquillity of order.  Persons are sociable, but so animals are too.
 The fruit of disorder is unhappiness. o But only humans decide, through reasonable choices,
 Aristotle: “The experience of many different forms of injustice the kind of relationship with others that they want to
makes quite obvious the existence of a variety of forms of enter into.
justice.”  Social relations  Established with rational and ethical
 Kant: “Men’s greatest and more frequent troubles are not so considerations in mind
much the result of adversity as the fruit of the injustices inflicted o “Social relations should not only be rational, since
upon them by other men.” decisions to dominate, kill, plunder, or abuse are often
rationally pondered; they must also be ethical, since they
2.2: PERSONS ought to respect the social order proper to persons.”
 Departure point between 2 concepts of human law:  Fruit of reasonable philosophizing  Notion of Law
Distinction between a person and animal—between who and
what (“Who did this?” vs. “What did it?”) 2.4: LAW AND POSITIVE LAW
o Persons are responsible (insofar as they can answer  Classical definition of positive law: “Law is the ordination of
for themselves) reason for the common good, promulgated by those who
 They can because the answer is within them. legitimately tasked to take care of the community.”
They are not determined by compulsive forces o Features that must be present in real law:
beyond their own control. 1. Order (meaning, right disposition among persons
 They enjoy a broad level of freedom of choice. and among persons and things);
 They enjoy a capacity of self-determination. 2. Rational (meaning, follow[ing] the right reason or
o Despite this, humans are not totally free saying that respecting such order will bring about the
 We are capable of holding our own immanence and of opening intended effects);
up at will to other personal beings, establishing with them 3. Serves the common good* (meaning, the sum to
relations of mutual knowledge, love, and cooperation  Result those conditions of social life which allow social
of choice, not of necessity groups and their individual members relatively
 “Our ability to establish interpersonal relations that either respect thorough and ready access to their own fulfilment);
or disregard what is due to others is the reason why we, human (*Common good as the summation of all that is good
persons, are ethical beings.” for the human person)

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 4. Ought to be promulgated (meaning, formally o Not possible for the law-giver to consider all personal
published so that it can be sufficiently known to situations
everyone affected); and  What is naturally good, both personally and in relation with
5. By legitimate authority (meaning, those persons that the common good, must prevail over granted rights and
every society has entitled to rule) duties.
 At the foundation of every piece of legislation there is a  Principle of the supremacy of EPIKEIA* over the letter of
personal right that needs to be preserved, protected, legal prescription
enhanced, or developed. (*Epikeia refers to, perfect realization of the legal justice)
 Double order of rights: o Embodies the justice whose attainment is supposed to
1. Belong to the person (i.e., human rights); or be the guiding intention of the human legislator
2. Result from man’s insertion in a concrete society o “Only one who is a true lover of justice can discern how
(Practical arrangements for the preservation, to use it without turning it into an excuse to fail in one’s
protection, enhancement, and development of those duty. It is the way a just and prudent legislator would
natural rights) have expressed the law if he would have been aware of
 Positive rights and Natural rights that specific situation.”
o Natural, in this sense, means due to men for the sake of
being men and nothing else
B. QUESTIONS 58 (OF JUSTICE) AND 61 (OF COMMUTATIVE AND
2.5: GRANTED RIGHTS DISTRIBUTIVE JUSTICE) IN BAUMGARTH AND REGAN’S “ON LAW,
 Natural rights cannot be granted by any human being, much MORALITY, AND POLITICS”
less by any institution, since they are naturally possessed.
o “Those who have granted others the right to live, or have QUESTION 58: OF JUSTICE
attributed to themselves the power to deny the right to (Aquinas defines justice as the perpetual and constant will to render
live are tyrants who have abused the power they enjoy… to others their rights (A.1), and justice is always in relation to others
No matter how they have been justified from the legal (A.2). Justice is virtue (A.3) and belongs to the will (A.4). Justice in
point of view, they constitute acts of rational and general is virtue in general insofar as justice directs the acts of other
voluntary regression to animal behavior, to the law of the virtues to the common good (A.5), but justice is essentially different
strongest.” from other virtues (A.6). There s also particular justice (A.7), which
 Legitimate authority  Limited power to grant legal rights and to concerns external actions and things (A.8). Justice is not about
impose legal duties to its subjects governing emotions (A.9), and the mean of justice is a real mean,
o ONLY as long as (1) those rights and duties are not a mean of reason (A.10). Just acts render to others what is owed
specifications or practical applications of the natural to them (A.11). Justice is the greatest moral virtue (A.12).)
rights, or (2) at least when, with full respect for them,
they contribute to enhance the good of the community SUMMARIES PER ARTICLE (*Sourced from the reference material in
and to the progress of civilization the linked below from the University of Notra Dame, but verified,
 Granted rights or imposed duties not just to be in agreement with annotated, and edited accordingly. -BB)
justice, BUT also required that these rights and duties are (https://www3.nd.edu/~afreddos/courses/453/justice.htm)
properly distributed
 Aquinas: Distributive justice…distributes common good A. 1-2—Justice can be defined as the habit by which one renders to
proportionally. each his right or due with a constant and perpetual will. Note in art. 2
 Legal rights  Imperfect that Plato's definition of justice (diakosune) in the Republic is called
metaphorical justice, but not proper justice, because proper justice is
always direct toward another rather than toward oneself. However,
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it is also true that one who is just in Plato's sense will have that virtue of (prudence, temperance, fortitude, and particular justice) insofar as
the will which is general or legal justice--or so, at least, it seems, it orders them toward the common good. He uses an analogy: "Just
because a general devotion to the common good or law-abidingness is as charity can be called a general virtue to the extent that it orders the
on Plato's view a defining characteristic of the just or morally upright acts of all the virtues to the divine good, so, too, legal justice can be
person. called a general virtue to the extent that it orders the acts of all the
virtues to [its own end,] the common good." It is principally in the
A. 3—Justice is a virtue even though just acts are the fulfillment of sovereign and secondarily in the subjects of the sovereign.
commands and hence of obligations. Note how in ad 2 St. Thomas
deals with supererogation. It does seem that we can have A. 7-11—Aquinas deals with justice insofar as it is a particular virtue,
supererogation, relatively speaking, in that we might sometimes go i.e., insofar as it specifies general justice with respect to our
beyond the strict demands of justice in our dealings with one another. particular relations with particular individuals as parts of a political
But one might also claim that there can be no true supererogation, community and with respect to particular goods.
absolutely speaking, in a moral theory according to which we are
ultimately commanded to love one another as Christ has loved us. As. 7 and 8 clarify the nature and object of particular justice. As a
Perhaps we can discuss this. In any case, St. Thomas later notes in art. particular virtue justice has a special subject matter, viz., our relations
11 that (natural) mercy and liberality are traced back to justice as to others, and its own object, the just; and in this way, like temperance
potential parts and in that sense fall under justice. and fortitude in their own way, particular justice is directed by general
justice toward the common good with respect to the specific subject
A.4—Justice is ordered toward doing something aright and not matter of particular justice--just as, in the case of infused justice,
toward knowing something aright, and so justice must have an particular justice is directed by charity toward love of God and
appetitive power as its subject. Further, since it is rational rather than neighbor with respect to the specific subject matter of particular
sentient apprehension which has our dealings with others and our justice.
rendering them their due as its proper object, it follows that justice must
reside in the rational appetitive power, viz., the will. A. 9 clarifies the subject of particular justice. This subject is the will,
rather than the passions. And so justice does not have to do directly
A.5-6—In these 2 articles, Aquinas deals with justice insofar as it is a with the passions, though it is painfully obvious that the roots of
general virtue, i.e., insofar as it is a virtue which underlies any good injustice often (though not always) lie in passions that are not
action that affects our relations with others. When one puts it this subject to reason.
broadly, it is evident that general justice provides an end, the common
good, that can motivate even acts of temperance and fortitude. That is, A. 10 makes clear that justice has a real mean rather than, as with
when acts of temperance and fortitude are directed to the common good, fortitude and temperance, a mean that is adjusted to particular
they become, as it were, acts of (general) justice as well, much as such temperaments. Justice, by contrast, is such that its demands are
acts can be turned into acts of charity if they are motivated by the satisfied by the rendering of whatever is due in a given situation, by
(general) virtue of charity. For all such actions can at least make one a no more and no less.
more fit member of the community and so, if this motive is at least in the
background, then all such actions can be thought of as being just and, A. 11 specifies the proper act of justice, which is to render each his
indeed, as acts of justice, even though, strictly speaking, general justice due. Of course, there will be other related virtues having to do with our
is best thought of, like charity, as causing or motivating such relations to others which take us beyond the demands of justice; and
actions. Aquinas calls general justice 'legal justice' (iustitia legalis), the these will be potential parts of it.
virtue of a good citizen or of a good member of a community.
A. 12—Justice is foremost among the moral virtues, regardless of
In A.6, Aquinas clarifies the nature of this legal justice, claiming that it is whether it is taken as a general virtue that orients us toward the
general insofar as it is a cause of all the acts of the other virtues common good or as a particular virtue that is ordered toward the
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particular good of other individuals. It is by justice (and charity) that this matter. A second way to think of this is to take the principal actions
we overcome our inborn tendency to center our lives on ourselves. of the two types of justice as themselves the matter of justice.

QUESTION 61: OF COMMUTATIVE AND DISTRIBUTIVE JUSTICE) Aquinas asks whether the just is counter-suffering ('retaliation':
(Aquinas distinguishes between two kinds of particular justice: 1. contrapassum--balancing the suffering against the action by which the
commutative justice, which consists of just exchanges between injury is inflicted). He answers that retribution or restitution is the
individuals; and 2. distributive justice, which consists of just object of commutative justice, since commutative justice seeks to
distributions of common goods to individuals (A.1). The mean of keep or restore a balance between individuals.
commutative justice is arithmetic, and the mean of distributive justice is
geometric (A.2). Commutative justice and distributive justice have
different subject matters: the former concerns activities involving
exchanges, and the latter activities involved distributions (A.3).)
C. RAWL’S “A THEORY OF JUSTICE” (CHAPTER 2, PARTS 10 to 19
A.1—Aquinas divides justice into commutative justice, which deals AND CHAPTER 3, PARTS 20-24)
with the relations between individuals within a given community,  Primary subject of the principles of social justice  Basic
and distributive justice, which deals with the relation of the community structure of society—or, the arrangement of major social
as a whole to individuals. Aquinas’s conception of the individual and the institutions into one scheme of cooperation.
community self-consciously steers between individualism, which o Assignment of rights and duties in these institutions
recognizes only commutative justice and thinks of the common good as as well as the distribution of the benefits and
a mere compilation of private goods and the role of the sovereign as burdens of social life
simply to prevent private individuals from harming one another in pursuit  Principles of justice for institutions /=/ Principles of justice which
of their independently conceived private goods, and collectivism , which apply to individuals
recognizes only distributive justice and thinks of the individual's private  Institution: Refer to, a public system of rules which defines
good as wholly exhausted by the public common good insofar as this offices and positions with their rights and duties, powers, and
public good is determined by those in authority. immunities, and the like
o Can be 1. Abstract object (a possible form of conduct
A.2—Commutative and distributive justice observe different means. In expressed by a system of rules); or 2. Realization in the
distributive justice, where goods that are common to everyone are thought and conduct of certain persons at a certain time
distributed by the ruler according to different standards (virtue, wealth, and place of the actions specified by these rules
power, expertise, need, etc.), the mean is equality of 'geometrical' o To say an institution is (un)just is to say that its
proportion, which involves a certain proportionality, rather than equality, realization would be (un)just.
between the common goods to be distributed and the various individuals. o It is important for Rawls that institutions are public
So individuals need not be treated in exactly the same way, and those systems of rules  People know certain things about
with greater virtue, expertise, need, etc., might receive unique privileges their institutions: they know what the rules are, and that
that ultimately contribute to the well-being of the whole. others know those rules
Commutative justice, on the other hand, has an arithmetic mean. That  Distinction between a single rule (or, a group of rules), an
is, one receives something of equal value to what one gives or has taken institution (or, a major part thereof), and the basic structure of
from one. the social system as a whole
o One or several rules of arrangement may be unjust
A.3-4—The matter of justice involves: (a) things and their disposition, without the institution itself being so. Similarly, an
(b) persons and their dignity, and (c) works. The two forms of justice institution may be unjust although the social system
have 2 different operations (distributing and commuting) with respect to as a whole is not.
 To
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  Formal justice: Adherence to principle, or as some have said,  Injustice, then, is simply inequalities that are not to the
obedience to system benefit of all.
o Formal justice in the case of legal institutions as, simply o The general conception of justice imposes no restrictions
an aspect of the rule of law which supports and secures on what sort of inequalities are permissible; it only
legitimate expectations requires that everyone’s position be improved.
o The strength of the claims of formal justice—of  In the Difference Principle, unless there is a distribution that
obedience to system—clearly depend upon the makes both persons better off (limiting ourselves to the two-
substantive justice of institutions and the possibilities of person case for simplicity), an equal distribution is to be
their reform. preferred.
o What does this mean? It means that society may
Two Principles of Justice undertake projects that require giving some persons
more power, income, status, etc. than others,
First (or, the Principle of Equal Liberty): Each person is to have an provided that the following conditions are met—
equal right to the most extensive scheme of equal basic liberties (a) the project will make life better off for the people who
compatible with a similar scheme of liberties for others. are now worst off, for example, by raising the living
Difference Principle: Social and economic inequalities are to be standards of everyone in the community and
arranged so that they are both (a) reasonably expected to be to empowering the least advantaged persons to the extent
everyone’s advantage, and (b) attached to positions and offices open to consistent with their well-being; and
all. (b) access to the privileged positions is not blocked by
discrimination according to irrelevant criteria
 Key points:  Supererogatory acts: These are acts of benevolence and
o The principles apply to the basic structure, and suppose mercy, of heroism and self-sacrifice.
that the basic structure can be divided into two parts o It is good to do these actions but it is not one’s duty or
(one securing liberties, the other distributing goods). obligation.
o The first principles contains a list of liberties. It does not o Supererogatory acts are not required, though normally
read the most extensive scheme of liberty compatible they would be were it not for the loss or risk involved for
with equal liberty for all. Liberties not on the list – e.g. the the agent himself.
right to private ownership of the means of production –  Although a society is a cooperative venture for mutual
are not basic. The only justification for circumscribing advantage, it is typically marked by a conflict as well as an
basic liberties is that they would interfere with another. identity of interests. There is an identity of interests since social
o One applies the second principle by first assuming (b) is cooperation makes possible a better life for all than any would
met and then maximizing the benefits (for the worst off). have if each were to try to live solely by his own efforts.
o The principles are in serial order –the first principle is  The idea of the original position is to set up a fair procedure so
prior to the second. Basic liberties cannot be sacrificed that any principles agreed to will be just. The aim is to use the
for the greater good. notion of pure procedural justice as a basis of theory.
 LIBERTIES: Political liberty (the right to vote and to hold public  VEIL OF IGNORANCE: Imaginative device for considering what
office) and freedom of speech and assembly; liberty of counts as just and fair in a state of society
conscience and freedom of thought; freedom of the person, o Individuals are considered to be behind a veil of
which includes freedom from psychological oppression and ignorance when they are in the original position.
physical assault and dismemberment (integrity of the person); o Veil of ignorance creates an environment in which the
the right to hold personal property and freedom from arbitrary individuals are ignorant about their social status, gender,
arrest and seizure age, ethnicity, abilities, level of intelligence, level of
education and likewise. In addition to that, veil prevents
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 the individuals to remember what their own concept of
good is and accordingly their life plans are.
o Rawls puts forth that veil of ignorance is the
assurance of the objectivity of the individuals when
they decide on the principles of justice. The
principles are to be impartial as the personal
benefits are totally hidden behind the veil of
ignorance, thus these principles are accepted as the
fundamental principles of justice.
 "The reason why Rawls preferred to offer difference
principle instead of sticking to a pure egalitarian view has
been discussed widely. Egalitarian justice foresees to
distribute a cake in biggest possible equal pieces to every
individual. At first sight this distribution seems fair but the
problem arises when it is realized that the amount of cake is
variable. Rawls put this in this way; in a given time the
distribution of the cake influences the individuals' capacity
to enterprise. If the distribution system gives incentive to
the individuals to produce more, then the amount of cake
will get bigger, hence the equal shares of each individual
will be more relatively. In this analogy, cake represents the
primary resources needed for the welfare of the society.
Rawls think that a strict equal distribution would kill the
motivation to produce more as individuals would be aware
of the fact that no matter how much they contribute to
economy they will get the same amount as everybody else.
Furthermore the cake would shrink by time because of the
lack of motivation to improve and develop. Seeing this risk
Rawls suggests the difference principle. With this principle,
he both prevents the negative incentives to arise and reduce
the amount of primary resources available and improves the
status of the worst off simultaneously."

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III. WHAT IS LAW? o Obedience as a personal relationship  Each only need
Preliminary questions: to obey (and no one in the community need to have
1. (From a particular perspective), what is law? express whether another’s obedience and whether it is
2. Is law just a set of rules? in any sense right, proper, or legitimately demanded.
3. What is the purpose of law? o On the continuity of rule making power: In the transition
4. Does law have anything to do with morality? of passing of power between sovereigns, it does not
5. Who benefits from the law) mean that one was habitually obeyed, the other one will
be habitually obeyed too.
A. DE PEDRO’S “PERSON AND LAW (LECTURE 2)  He may have the right to make law and his
*See page 9-10 for full discussion. others may be law, but it doesn’t follow that his
law will be habitually obeyed.
B. LLOYD’S “THE IDEA OF LAW” (CHAPTERS 10)** o KEY POINTS: (1) Mere habits of obedience to orders
given by one legislator cannot confer on the new
C. HART’S “THE CONCEPT OF LAW” (CHAPTERS 4 AND 5) legislator any right to succeed the old and give orders on
CHAPTER 4: SOVEREIGN AND SUBJECT his place; and (2) Habitual obedience to the old lawgiver
 Simple model: Law as coercive orders cannot render by itself probably, or any found
 It is provisionally assumed that in any society where there is presumption, that the new legislator’s orders will be
law, there is actually a sovereign characterized affirmatively obeyed.
and negatively by reference to the habit of obedience o There must have been the acceptance of the rule
 Doctrine of sovereignty under which the new legislator is entitled to
o In every human society, where there is law, thre is succeed.
ultimately to be found latent beneath the variety of o Social rules and habits
political forms, this simple relationship between subjects  Similarities: In both cases, behaviour in question
rendering habitual obedience and a sovereign who must be general (not necessarily invariable); and
renders habitual obedience to no one Behavior is repeated when the occasion arises
o Two important points:  Differences: (1) For there to be a habit, the
1. Habit of obedience behaviour of the group converges (or, deviation);
 Whether habit is sufficient for: (1) the (2) Where there are such rules, not only is
continuity of the authority to make law criticism made but deviation from standard is
possessed by a succession of different generally accepted as a good reason for making
legislators, and (2) the persistence of laws it; and (3) Internal aspect of the rules
long after their maker and those who  Habit of obeying the word of the sovereign  Social
rendered him habitual obedience have practice underlying the legislative authority
perished o Word then becomes not just utterance, but a standard of
2. Position occupied by the sovereign behaviour (so that deviation from such behaviour will be
 Is such sovereign, who imposes limitations open to criticism and his word will now generally be
on others legally limited and illimitable? referred to and accepted as justifying criticism and
demands for compliance)
The Habit of Obedience and the Continuity of the Law  HOWEVER, acceptance of a rule by society at one moment
 Obedience: Suggests deference to authority and not merely does not guarantee its continued existence
compliance with orders backed by threats o In the absence of evidence to the contrary the rule will
o Not easy to determine the precise connection between not be abandoned and thus, still exists
giving the order and performance of act (obedience)
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  Strength of the doctrine is that it forces us to think in realistic  The theory does not merely state that there are some societies
terms of this relatively passive aspect of the existence of a legal where a sovereign subject to no legal limited is to be found, but
system; weakness is that it obscures or distors the other that everywhere the existence of law implies the existence of
relatively active aspect in law-making, law-identifying, and law- such a sovereign.
applying operations o Theory is not saying that there is no limits, but rather, no
legal limits on it.
The Persistence of Law  Two things: (1) Identify in his general orders the law of a given
 How can law made by an earlier legislator still be law for a society and distinguish it from many other rules, principles, or
society that cannot to be said to habitually obey him (because he standards, moral, or merely customary by which the lives of the
is long dead)? member are also governed; or (2) within the area of law, we can
 “Why law already?”  “Why law still?” determine whether we are confronted with an independent legal
o A rule might exist now, but may in a sense be timeless in system or merely a subordinate part of some other system.
its reference: it may not only look forward and refer to o ‘Limits’ implies not just the presence of duty, but the
the legislative operation of a future legislator, but it absence of legal power.
may also look back and refer to the operations of a  KEY POINTS:
past one. 1. Legal limitations on legislative authority consist not of
 Notion of accepted rule conferring authority on the orders of past duties imposed on legislator to obey some superior legislator
and future as well as present is certainly more complex and but of disabilities contained in rules which qualify him to
sophisticated than the idea of habits of obedience to a present legislate.
legislator 2. In order to establish that a purported enactment is law,
 Hobbes (echoed by Bentham and Austin): The legislator is you need not trace it back to the enactment, express or tact,
he, not by whose authority the laws were first made, but whose of a legislator, but instead, show that it was made by a
authority they now continue to be laws. legislator who was qualified to legislature under an
o Authority of legislator vs. Power of legislator existing rule and that either no restrictions are
 Recognition as law of a legislative operation of a past contained in the rule or there are none affecting this
sovereign does not take the form of an explicit order, but of particular enactment.
a tacit expression of the sovereign’s will 3. In order to show before us an independent legal system,
 Unless officials of the system then and above all the courts there is no need to show that legislator is legally unrestricted
accept the rule that certain legislative operations, past or or obeys no other person, but show merely that the rules
present, are authoritative, something essential to their status as which qualify the legislator do not confer superior
la will be lacking authority on those who have also authority over other
territory.
Legal Limitations on Legislative Power o What this means is that the fact that he is not
 The complement of the general habit of obedience of the subject subject to such foreign authority does not mean that
is the absence of any such habit in the sovereign. he has unrestricted authority within his authority.
o He makes the law for his subjects and makes it from 4. Difference between a legally unlimited legislative
a position outside any law. There are thus, and can authority and one, while limited, is supreme
be, no legal limits to his law-creating powers. 5. The absence or presence of rules limiting the
 They can only be legislative limits on the legislator’s competence to legislate is crucial, the
legislative power of the legislator if the legislator legislator’s habits of obedience are at most some
were under the orders of another legislator who indirect evidential importance.
he habitually obeyed.
The Sovereign Behind the Legislature
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  If we are to maintain the theory that wherever there is law there A Fresh Start
is a sovereign incapable of legal limitation, we must search for  The root cause of failure is that the element out of which the
such a sovereign behind the legally limited legislature. theory was constructed do not include and cannot by their
 Distinction between ‘manner and form of legislation’ (or, combination yield the idea of a rule without with we can
definitions of the legislative body) and ‘substantial’ elucidate even the most elementary forms of law.
limitations  The idea of rule is by no means, a simple one.
 Where legal limitations on normal operations of the supreme o Among its complexities is the difference in the types of
legislature are imposed by a constitution, these themselves may rules: (1) Basic/primary (Human brings are required to
or may not be immune from certain forms of legal change. do or abstain from certain actions, whether they wish or
 The difference between a legal system in which the ordinary not; also imposes duties; and concern actions involving
legislature is free from legal limitations, and one here the physical movement or changes); and (2)
legislature is subject to them appears merely as a difference Parasitic/secondary (Provide human beings may by
between the manner in which the sovereign electorate chooses doing or saying certain things introduce new rules of the
to exercise its sovereign powers. primary type, extinguish or modify old ones, or in various
 Original clear image of a society divided into 2 segments: ways determine their incidence or control operations;
(1) the sovereign free from legal limitation who gives orders, and also, confer powers, public of private; provide for
(2) the subects who habitually obey operations which lead not merely to physical movement
o Given place to the blurred image of a society in or change, but to the creation or variation of duties or
which the majority obey orders given by the majority obligations.)
or by all.  The diverse range of cases of which the word ‘law’ is used
 ‘Orders’ and ‘obedience’ now mean something are not liked by any such simple uniformity, but by less
entirely different direct relations to a central case.
 Distinction of individuals in their private capacity and the same
persons in their official capacity as electors or legislators The Idea of Obligation
 What then is it for such rules to exist? Since there can be  The theory of law as coercive orders started from the perfectly
rules defining what the members of society must do to function correct appreciation of the fact that where there is law, there
as an electorate (and so for the purposes of the theory as a human conduct is made in some sense non-optional or
sovereign), they cannot themselves have the status of orders obligatory.
issued by the sovereign.  Difference between the assertion that someone was obliged
o At most we might say that the rules set forth the to do something (refers, to a statement about the beliefs and
conditions under which the elected persons aare motives with which an action is done) and the assertion that he
habitually obeyed had an obligation to do it (refers, not just to a statement of
 The simple idea of orders, habits, and obedience cannot be beliefs and motives, but also the case that the facts are not
adequate for the analysis of law. necessary for the truth of the statement)
o What is required instead is the notion for a rule o Notion of obligation not as psychological statements, but
conferring powers, which may be limited or as predictions or assessments of chances of incurring
unlimited, on persons qualified in certain ways to punishment or ‘evil’
legislate by complying with a certain procedure. o Fundamental objection  Predictive interpretation
obscures the fact that, where rules exist, deviations from
them are not merely grounds for a prediction that hostile
CHAPTER 5: LAW AS THE UNION OF PRIMARY AND SECONDARY reactions will follow or that a court will apply sanctions
RULES to those that break them, but are also a reason or

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 justification for such reaction and for applying the o If a society is to live by such primary rules alone, there
sanctions. are conditions which must be satisfied:
o If it were true also that the statement that the person has 1. Rules must contain in some form restrictions on the
an obligation meant that he was likely to suffer in the free use of violence, theft, and deception to which
event of disobedience, it would be a contradiction to say human beings are tempted but which they must, in
that he had an obligation. general, repress if they are to coexist;
 Two ways (meaning the existence of social rules): 2. Though society may exhibit tensions between those
1. The existence of such rules, making certain types of who accept the rules and those who reject the rules
behaviour a standard, is the normal, background or proper except where fear of social pressure induces them
context for such a statement; and to conform, it is plain that the latter cannot be moore
2. The distinctive function of such statement is to apply such a than the minority.
general rule to a particular person by calling attention to the  Defects in social structure of primary rules: (1) uncertainty,
fact that his case falls under it. (2) static character of the rules, and (3) inefficiency of the diffuse
 The statement that someone has or is under an obligation social pressure
does indeed imply the existence of a rule, yet it is not o Remedy consists in supplementing the primary rules
always the case where rules exist the standard of behaviour of obligation with secondary rules.
required by them is conceived in terms of obligation.  Uncertainty  Rule of recognition
 “He ought to have” /=/ “He had an obligation to”  Static  Rule of change
 Rules are conceived and spoken of as imposing obligations hen  Inefficiency  Rule of adjudication
the general demand for confirming is insistent and the social  The combination of the primary rules of obligation with the
pressure brought to bear upon those who deviate or threaten is secondary rules of recognition, change, and adjudication
great. gives us not just the heart of the legal system, but a
o The rules then supported by this serious pressure are powerful tool of analysis.
thought important because they are believed to be
necessary to the maintenance of social life.
 Rules are essential as they restrict the free use
of violence. So too are rules which require
honesty or truth or require the keeping of
promises.
o There are also thought of to involve sacrifice or
renunciation.
 To feel obliged and to have an obligation are different
though frequently concomitant things.
 Distinction between internal and external rules
o What the external point of view cannot reproduce is the
way in which the rules function as rules in the lives of
those who normally are the majority of society.

The Elements of Law

 Possible to imagine society without a legislature, courts, or
officials  custom governs them (or, of primary rules of
obligation)

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IV. LAW AND MORALITY; NATURAL LAW AND LEGAL POSITIVISM o Conducted by victorious Allied Powers (US, Great
A. ALTMAN’S “LAW AND MORALITY” (IN ARGUING ABOUT THE Britain, France, and Soviet Union)
LAW: AN INTRODUCTION TO LEGAL PHILOSOPHY) o Men were charged with the crimes against peace, war
 “You can’t legislate morality.” crimes, and crimes against humanity. In addition, they
 FOUR DIFFERENT ELEMENTS OF MORALITY were charged with conspiracy to commit said crimes.
1. Moral rules that obligate us to act in certain ways; o 3 acquitted, 18 were each convicted on at least one
2. Conduct that is “above and beyond the call of duty”; charge. 11 received the death sentence, while the
3. Motives from which a morally good person acts; and remained received prison statements.
4. Qualities of character that help a person act in ways that are o A trial is a legal proceeding and the implication of
obligatory or praiseworthy (or, virtues) holding one is that the accused are not merely morally
 The first part of morality—rules that can obligate us to act in guilty but legally guilty as well. It was not enough to
certain ways—can and ought to be legislated. But, when it declare that the defendants were evil men who
comes to the second, third, and fourth elements, it becomes committed evil deeds. It has to be argued that they
unclear. violated the law.
o The claim that you cannot legislate morality comes down
to the claim that it is unfair for laws to require acts that Criticisms of the Trial
go beyond the call of duty and impossible for laws to  Two distinct arguments: (1) The trial should follow the rule of
make us virtuous or lead us to act from morally law, but that the Nuremberg proceedings seriously violated it;
commendable motives. and (2) Law consists of commands of a sovereign state and that
 The first part of morality is sometimes called natural law. only law applicable to the German defendants were the
o It is considered to constitute a system of law in its own commands of the German sovereign (Hitler).
right, consisting of rules that can be known by our o FIRST ARGUMENT:
natural powers of reasoning.  There were supposedly no valdi legal rules in
 Positive law, on the other hand, refers to any system og laws effect at the time of the defendants actions that
created by humans and enforced within a given terroritory. outlawed “crimes against humanity.”
 Distinction between natural and positive law  Natural law  The Nuremberg Chapter did outlaw crimes
tends to be universally valid, imposing obligations on every against humanity, but that charter was adopted
individual in every country and historical era; Positive law only after the alleged crimes took place.
claims validity over a particularly territory and its inhabitants.  International treaties did not make individuals
 Is there then a necessary connection between law and criminally liable for their conduct and provided
morality? (Law here refers to positive law and morality denotes no specific punishments for violated.
the natural part of morality)  The make-up of the tribunal violated the
o Natural Law Theory: Assert that a necessary principle that those accused of crimes have a
connection does exist between (positive) law and right to defend themselves before an impartial
morality. body.
o Legal Positivism: Deny any such necessary  The newly invented rules being enforced against
connections between law and morality. the defendants were not consistently and
impartially applied.
JUDGEMENT AT NUREMBERG  The concept of the war of aggression was not
Historical Background defined with sufficient legal precision.
 Nuremberg Trial o SECOND ARGUMENT:
 There is no global sovereign who enforces
international treaties and agreements—so
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 called, international law—thus, it cannot really
be authoritative and binding at all. It cannot then NATURAL LAW THEORY: OVERVIEW
be a basis for prosecution. TRADITIONAL NATURAL LAW THEORY: BACKGROUND
 Under German law, the defendants had not  There are universal principles of right and wrong that can be
acted illegally. Sovereign power lay in the hands discovered by human reason, which goes back to the time of
of Hitler and the defendants who allegedly Ancient Greece.
committed the crimes simply carried out his  Natural principles as providing standards by which the rules of
commands. positive law could be judged
 Acts of the state cannot be illegal because the o Represented a “higher law” by which the goodness or
sovereign dictates what is legal and illegal. Also: badness of a positive law could be determined
And insofar as the defendants were subjects of  During the Middle Ages, some natural thinkers argues that the
the sovereign state, their actions complied with rules of positive law must be consistent with the obligations
orders coming from their political superiors and imposed on everyone in order to be legally valid.
ultimately from Hitler.  Difference between saying that the natural law should be used to
 Complying with the commands that come from evaluate positive laws as either good or bad and saying that
the sovereign cannot be a crime because those natural law should be used to declare positive laws as legally
commands dictate what counts as a crime. valid or invalid

Justifying the Trial

 Several international treaties and agreements renounced
aggressive war and declared it to be criminal. Germany was AQUINAS’ THEORY OF LAW
itself party to some of these agreements. Law and the Good
 International community had long recognized war crimes as a  Aquinas’ theory rests on his vision of the universe as
violation of international law. (The Nuremberg Charter based its governed by a single, self-consistent, and overarching
definition of war crimes on the Hague Convention of 1907 and system of law.
the Geneva Convention of 1927.) o The entire system is under the direction and authority of
 What counts is not what country a judge comes from but his the supreme lawgiver and judge.
independence and his willingness to listen to both sides and o Human law occupies the lower tier of this system. Above
render a verdict supported by the law and the evidence. it are eternal law, natural law, and divine law.
 Sovereign states were not above the law but were obligated by  Eternal law: Consists of those principles of action and motion
international law. And international law obligated states to refrain that God implanted in things in order to enable each thing to
from aggression, genocide, and the other conduct enumerated in perform its proper functions. (Proper function determines what is
the four counts of the indictment. good and bad.)
 Natural law: Consists of principles of eternal law specific to
Assessing the Trial human beings. (Principles are knowable by our natural powers of
 Many critics of the trial will insist that the prosecution of the reason, and they guide us toward what is good for humans.)
German defendants rested on a fundamentally mistaken  For Aquinas, humans will not reach the ultimate good
conception of the nature of law and crime. simply by following the natural law. The principles of natural
o Law derives from the power of the sovereign, not from law help us each the good that is achievable in this world.
the sovereign’s moral virtue. Yet, beyond this world there is an ultimate human good:
 The Nuremberg trial presented an example in opposing eternal salvation.
theories of the nature of law.

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  Human Law: Consists of rules framed by the head of the FULLER AND FIDELITY TO LAW
community for the common good of its members. The Inner Morality of Law
 Divine Law (2 sources: 1. Scripture, and 2. Tradition).  Fuller argues that any genuine system of law necessarily abides
 For Aquinas, an unjust rule as such cannot create any by certain moral principles—or, what he calls “inner morality of
obligation to obey its terms. In which disobedience to the rule law.”
would threaten to cause social disorder, and he is saying that we  A government can control and regulate the conduct of those in
are obligated to follow an unjust rule in such cases in order to society in different ways. But a system of regulation and control
avoid the disorder. is not a system of law, according to Fuller, unless these
 Unjust rules framed by the ruler are unjust laws. principles are satisfied.
 The purpose of human law is to promote the common good  What are the principles that make up the inner morality of law?
of the members of the political community. The common o Fuller derives them from the idea that law is something
good is not promoted, however, by rules that go contrary to intended to regulate and control conduct by means of
natural law. These rules represent the misuse of power to general rules that are addressed to humans as agents
frame rules for the political community. Hence, unjust rules capable of deliberation and choice.
are without legal authority.  Fuller contends that there is a prima facie obligation to obey the
rules of any genuine system of positive law. This imposes a real
Assessing Aquinas moral requirement on individuals.
 Aquinas’ claim rests on (1) God exists; (2) God has ordained that  There is then a duty of fidelity to the law.
those in charge of political communities frame laws serving the  The inner morality of law, however, does not guarantee that
common good; and (3) The natural reasoning powers of humans every genuine law is just law.
lead all reasonable persons to agree on the basic principles that o And if a law is seriously unjust, the prima facie obligation
determine good and bad, right and wrong. to obey it may be overridden.
 Others would contract Aquinas insofar as they would argue that  Fuller believes that the basic idea behind natural law theory can
(1) there is no God, (2) even if there is, God’s existence is not be vindicated. The necessary connection is not as strong as
something that we can known but only believe in; (3) even if we traditional natural law thinkers had postulated, because it is
know that God exists, we cannot known what God intends those possible that particular positive laws are unjust and morally
in charge of political communities to do; and (4) reasonable ought to be disobeyed.
people can disagree over fundamental principles of human good  He argues that at some point, the violation of rule of law
and obligation principles become so pervasive and serious that we are no
 This is where the trouble for Aquinas’ traditional version of longer dealing with a system under the rule of law but rather with
natural law theory starts to become obvious,. The purposes arbitrary government or some mode of regulating behaviour.
to which humans have put positive law have not always  The inner morality of law requires functioning institutions to
been especially moral or just. implement, interpret, and enforce the provisions of the law. Rules
 The traditional are natural law view clearly rejects any such of obligations that are not brought down to each in that way do
relativism in favour of the idea that there are objective moral not count as a legal ystem.
obligations.
 Even if we accept that human beings are always trying to Assessing Fuller’s Inner Morality
promote justice when enacting laws, it does not follow that unjust  He avoids the key problem of traditional natural theory. He does
rules cannot be genuine laws. not try to show that every unjust rule of positive law is legally
 Traditional natural law seems to be on shaky grounds in claiming nullified by the higher authority of natural law.
that unjust rules cannot have legal authority.

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 o He focuses on particular laws one by one, but rather, on  But, it is a mistake to stop with the explicit rules in considering
the kind of system by which the ruling authorities in a what belongs to the law.
country seek to regulate and control society.  How does one determine which are the best moral principles that
 His claim that a system of law always imposes a prima facie can be seen as lying beind the rules explicitly adopted by the
obligation is problematic. The rules of a system that fully abides moral community? Dworkin’s answer: one must judge the decree
by Fuller’s inner morality can be as unjust and dehumanizing as to “fit” between some proposed principle and the rules.
the regime of the Nazis.
 Fuller argues that the inner morality of law puts significant Fitting the Fourth Amendment: Privacy
constraints on a government bent on evildoing and injustice.
Those who commit evil and injustice typically do not want others The Role of Morality
to know about it and do not want to be restricted by rules and  Dworkin’ solution is to look to morality: the privacy principle on
regulations. which legal decisions should be made is one, from among those
 We are expecting too much from the rule of law if we think that it that fit the explicit legal rules, that is morally best.
can ground a prima faci moral obligation to obey any law, no  For Dworkin, then, the law consists of the rules explicitly adopted
matter how oppressive or unjust, as long as the law in question by the political community plus the best principles that fit those
is part of a system that generally conforms to the principles of rules. Best here means morally best.
legality.  For Dworkin, might does not make right but neither does it make
law. The idea that the law has integrity is the idea that the law
Law and Social Purpose consists of rules the community has authoritatively decided to
 Fuller claims that positive law and morality are connected in adopted plus the best moral principles that fit those rules.
another way, providing an additional moral basis to be faithful to
the positive law. The Challenge of Skepticism
 There are then social purposes that lie behind the rules of  Difference between External and Internal Skepticism
positive law.
 Fuller says that the rules should be interpreted so as to promote LEGAL POSITIVISM THEORY: OVERVIEW
those social purposes. Doing so would promote the good of AUSTIN’S THEORY OF LAW
society: something morality commends us to do. HART: LAW AS PRIMARY AND SECOND RULES
 Critics of Fuller point out that interpreting laws in terms of their *Refer to other readings
underlying social purposes does not necessarily promote what is
morally good, simply because social purposes can be grossly SUMMARY: NATURAL LAW VERSUS POSITIVISM
immoral or unjust.  The dividing line between positivism and natural law theory
runs right through the concept of legal obligation.
DWORKIN’S INTERPRETIVE THEORY o Positivists insist on negative answers to these questions,
Rules and Principles: The Idea of Fit arguing that the ideas of law and legal obligation and
 Dworkin believes that legal interpretation, when properly carried should be explained in terms of power, coercion, control,
out, requires the making of moral judgements. This does not and/or rules but not in terms of moral right and wrong.
mean that rules of positive law will be declared invalid when they o Natural law thinkers insist on affirmative answers,
are judged to be immoral or unjust. arguing that the ideas of power, coercion, control, and
 For Dworkin, the law includes more than those rules that are rules cannot adequately explain the nature of legal
explicitly adopted as authoritative by the political community. obligation: moral right and wrong are ingredients.
Such rules can be ground in statutory codes, judicial decisions,
and other official documents.

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B. LLOYD’S “THE IDEA OF LAW” (CHAPTER 7)** be different laws at Rome and at Athens, or different laws now
and in the future, but one eternal and unchangeable law will
C. BRIX’S “NATURAL LAW THEORY” (IN PATTERSON’S A be valid for all nations and all times, and there will be one
COMPANION TO PHILOSOPHY OF LAW AND LEGAL THEORY) master and ruler, that is, God, over us all, for he is the author of
 In legal theory, “natural law” can be placed into one of two this law, its promulgator, and its enforcing judge. Whoever is
broad groups: (1) traditional natural theory; and (2) modern disobedient is fleeing from himself and denying his human
natural theory. nature, and by reason of this very fact he will suffer the worst
o The two types of approaches are by no means penalties, even if he escapes what is commonly considered
contradictory or inconsistent, but they reflect sets of punishment. (Cicero, 1928 , Republic III.xxii.33, at 211)
theoretical concerns sufficiently different that it is rare to
find writers contributing to both.  KEY POINTS: (1) Natural law is unchanging over time and does
not differ in different societies; (2) Every person has access to
TRADITIONAL NATURAL THEORY the standards of this higher law by use of reason; & (3) Only just
 Grounded on the idea that there are standards against which laws really deserve the name ‘law’ (as in the very definition of the
legal norms can be compared [and sometimes] found wanting— term ‘law ’ there inheres the idea and principle of choosing what
the standards is what is often articulated as “a higher law.” is just and true).
o What this means is that, there are law-like standards o Ambiguity regarding the reference of “natural” in
that have been stated in or can be derived from “natural law ”  Not clear whether standards were
divine revelation, religious texts, a careful study of “natural” 1. because they derived from “human nature”
human nature, or consideration of nature. (or, our “essence” or “purpose ”); 2. because they were
o Two views: (1) Not everything enacted is binding accessible by our natural faculties (that is, by human
morally; and (2) Law has a moral weight. reason or conscience), 3. because they derived from or
 WHAT IS TRADITIONAL NATURAL THEORY? [It] (1) offers were expressed in nature (or, in the physical world about
arguments for the existence of a “higher law;” (2) us)
elaborations of its content, and (3) analyses of what o Morality and law  Connection between these
consequences follow from the existence of a “higher law.” standards and divine commands

CICERO AQUINAS
 Formulated one of the best known Natural Law positions  Most influential writer within the traditional approach to natural
th
 Wrote in 1 century BCE; Strongly influenced by the works of the
st law; Wrote in the 13 century
Greek Stoic philosophers o Context of his work on law: Part of a larger theological
 Offered the following characterization of natural law: project that offered that a systematic and moral political
system
True law is right reason in agreement with nature; it is of  FOUR DIFFERENT KINDS OF LAW:
universal application, unchanging and everlasting; it 1. ETERNAL LAW
summons to duty by its commands, and averts from 2. NATURAL LAW
wrongdoing by its prohibitions. And it does not lay its 3. DIVINE LAW
commands or prohibitions upon good men in vain, though neither 4. HUMAN (POSITIVE) LAW
have any effect on the wicked. It is a sin to try to alter this law,  POSITIVE LAW (or, genuine or just law): Derived from natural
nor is it allowable to attempt to repeal any part of it, and it is law; Has different aspects—
impossible to abolish it entirely. We cannot be freed from its o [Like] logical deduction: Natural law sometimes
obligations by senate or people, and we need not look outside dictates what natural law should be; while natural law
ourselves for an expounder or interpreter of it. And there will not leaves room for human choice.
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 o “Determination”* of general principles o Grotius: “[N]atural law, the higher law against which the
(*Determination not in a sense of ‘finding out’ but of actions of nations, lawmakers, and citizens could be
making specific concrete) judged, did not require the existence of God for its
o Positive laws that are just “have the power of validity.”
binding in conscience.”  Separation of natural law from a divine being
o A just law is one that is consistent with the  Divine command, purpose, will, or wisdom 
requirements of natural law. “Requirements of reason”
 Criteria: (1) “ordered to the common good;” (2) o What the law is  What the law ought to be
lawgiver has not exceeded its authority; & and
(3) law’s burdens are imposed on citizens fairly JOHN FINNIS
 LEX INIUSTA NON EST LEX: “An unjust law is not law.” (*Not  His work is an explication and application of Aquinas’s views
towards good of the person, but towards the common good)  An application to ethical questions, but with special attention
o “Every human law has just so much of the nature of law, to the problems of social theory in general and analytical
as it is derived from the law of nature. But if in any point jurisprudence in particular.
it deflects from the law of nature, it is no longer a law but  According to Finnis, there are a number of distinct but equally
a perversion of law.” valuable intrinsic goods (that is, things one values for their
o “[Unjust laws] are acts of violence rather than laws; own sake), which he calls “basic goods.”
because… a law that is not just, seems to be no law at o Basic goods: (1) life (and health), (2) knowledge, (3)
all.” play, (4) aesthetic experience, (5) sociability (friendship),
 What does it mean to say that an apparently valid law is “not (6) practical reasonableness, and (7) religion.
law,” “a perversion of law,” or “an act of violence rather  But, the difference between right and wrong cannot be
than a law ”? drawn at the level of basic goods. At this level, we are merely
o Two ways: (1) An immoral law is not valid law at all (But, distinguishing between the intelligible and unintelligible.
a critique of such view is that we must not confuse  Finnis describes the basic goods he identifies, and other
questions of power with questions of validity.); and (2) principles identified in his moral theory, as “self – evident.”
Unjust laws are not laws “in the fullest sense.” o What it means for a (true) proposition to be “self -
o The latter point to the fact that, it does not carry the evident ” is that it cannot be derived from some more
same moral force or offer the same reasons for action as foundational proposition; thus, “ self - evident ” is here
laws consistent with “ higher law. ” the opposite of syllogistically demonstrable.
 A citizen, according to Aquinas, is not bound to obey “a law  Because there are a variety of basic goods, with no
which imposes an unjust burden on its subjects” if the law hierarchy or priority among them, there must be principles
“can be resisted without scandal or greater harm. ” to guide choice when alternative courses of conduct
NATURAL LAW IN EARLY MODERN EUROPE promote different goods.
 Discussions about natural law were tied in with other  Morality offers a basis for rejecting certain available choices, but
issues: assertions about natural law were often the basis of or there will often remain more than one equally legitimate choice
part of the argument for “natural rights ” (referred to as, human (again, there is a contrast with most utilitarian theories, under
rights”), which essentially are became a discussion for individual which there would always be a “ best ” choice).
rights that included rights against the state and served as  For Finnis, the move from the basic goods to moral choices
limitations on government. occurs through a series of intermediate principles, which
 Groundwork for International Law was also laid. Finnis calls “the basic requirements of practical
 Some prominent theories: Grotius and Pufendorf; Approach reasonableness.”
would further be developed by the “social contract” theories of
Hobbes, Locke, and Rousseau.
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 o i.e., prescription that one may never choose to destroy, o EIGHT REQUIREMENTS:
damage, or impede a basic good regardless of the 1. Laws should be general;
benefit one believes will come from doing so. 2. They should be promulgated, that citizens might
 Law, for Finnis, enters the picture as a way of obtaining know the standards to which they are being held;
certain some goods – social goods that require the 3. Retroactive rulemaking and application should be
coordination of many people – that could not be obtained minimized;
(easily or at all) without law, and it also enters as a way of 4. Laws should be understandable;
making it easier to obtain other goods. 5. They should not be contradictory;
 Doing legal theory, one should not take the perspective of 6. Laws should not require conduct beyond the abilities
those who merely accept the law as valid (Hart), but that of those affected;
rather, the theory should assume the perspective of those 7. They should remain relatively constant through time;
who accept the law as binding because they believe that &
valid legal rules (presumptively) create moral obligations. 8. There should be a congruence between the laws as
o This reveals a difference between a legal positivist ’s announced and their actual administration.
insistence on doing theory in a morally neutral way and  Fuller chafed at the dismissal of his set of requirements as
the Natural Law theorist’s assertion that moral evaluation “merely procedural”
is an integral part of proper description and analysis. o This was an argument frequently made by critics that his
“principles of legality” were amoral solutions to problems
MODERN NATURAL THEORY of efficiency, such that one could just as easily speak of
 Focuses more narrowly on the proper understanding of law “the internal morality of poisoning.”
as a social institution or a social practice. o Key arguments (against such claims): (1) Following the
 Arises as responses to legal positivism, and the way legal principles of legality is itself a moral good; (2), the fact
positivists portrayed traditional natural law positions. that a government follows those principles may indicate
that it is committed to morally good actions; and (3) that
LON FULLER following such principles may hinder or restrict base
 Rejected what he saw as legal positivism’s distorted view of actions.
law as a “one-way projection of authority”: the government  MAIN POINTS:
gives orders and the citizens obey. 1. A value judgment about the system described is part of
o According to Fuller, this missed the need for cooperation the way we use the word “law”
and reciprocal obligations between officials and citizens 2. There is analytic value to seeing law as a particular kind
for a legal system to work. of social guidance, which is to be contrasted with other
 Law as “the enterprise of subjecting human conduct to the forms of social guidance,
governance of rules” 3. That which can be more or less effective according to
o A form of guiding people; a particular means to an end; how well it meets certain criteria – would not be
and a particular kind of tool undermined by pointing out legal systems which were
 Offered, in place of legal positivism’s analysis of law based substantively unjust but which seemed to do well on
on power, orders, and obedience, an analysis based on the questions of procedural justice.
“internal morality” of law.  Fuller becomes problematic insofar as the tendency is to fixate
 The internal morality of law consists of a series of on the question of when a rule or a system of social control
requirements which Fuller asserted that a system of rules merits the label “law” or “legal.”
must meet – or at least substantially meet – if that system o It is probably preferable to bypass questions of labeling and
was to be called “law. ” line - drawing, to face directly whatever further substantive
issues may be present.
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 the applicability of constructive interpretation to
RONALD DWORKIN art and literature and the treatment of legal
 Developed a sophisticated alternative to legal positivism. interpretation as analogous to artistic or literary
o Occasionally referred to his approach as a natural law interpretation, are controversial claims.
theory, and it is clearly on the natural law side of the o Constructive interpretation is both an imposition of
theoretical divide set by the Hart - Fuller debate. form upon the object being interpreted (in the sense
 Dworkin challenged a particular view of legal positivism, a view that the form is not immediately apparent in the object)
that saw law as being comprised entirely of rules, and judges as and a derivation of form from it (in the sense that the
having discretion in their decision - making where the dispute interpreter is constrained by the object of interpretation,
before them was not covered by any existing rule. and not free to impose any form she might choose).
 Offered an alternative vision of law, in which the resources  “Standard” response to his work  Judges and legal theorists
for resolving disputes “according to law” were more should not look at law through “rose-colored glasses,” making it
numerous and varied, and the process of determining what “the best it can be”; rather, they should describe law “as it is.”
the law required in a particular case more subtle.  MAIN POINT:
 According to Dworkin, along with rules, legal systems also o Law “as it is,” law as objective or noncontroversial,
contain principles. As contrasted with rules, principles do is only the collection of past offi cial decisions by
not act in an all - or - nothing fashion. Rather, they have judges and legislators (which Dworkin refers to as
“weight,” they favor one result or another. Thus, legal the “pre - interpretive data, ” that which is subject to
principles are moral propositions that are grounded the process of constructive interpretation). However,
(exemplified, quoted, or somehow supported by) past even collectively, these individual decisions and
official acts. actions cannot offer an answer to a current legal
o Still, there is a separation of law and morality. question until some order is imposed upon them.
o Judges are told to decide cases based not on whatever And the ordering involves a choice, a moral -
principles (critical) morality might require, but rather, political choice among tenable interpretations of
based on a different and perhaps inconsistent set of those past decisions and actions.
principles: those cited in, or implicit in, past official
actions. OTHER MODERN WRITERS (Moore, L. Weinreb, E. Weinreb,
 Two tenets of Dworkin’s early writings: (1) law contained Beyleveld and Brownsword, and Murphy)
 principles as well as rules; and (2) that for nearly all legal
questions, there was a unique right answer. CONCLUSION
 Later on, offered “an interpretive approach” to law.  TWO GROUPS: (1) “traditional natural law theory ” sets out a
o “Legal claims are interpretive judgments and moral theory (or an approach to moral theory) in which one can
therefore combine backward – and forward - looking better analyze how to think about and act on legal matters; and
elements; they interpret contemporary legal practice (2) “ modern natural law theory ” argues that one cannot properly
as an unfolding narrative.” understand or describe the law without moral evaluation.
o Both law (as a practice) and legal theory are best
understood as processes of “constructive
interpretation.” D. COLEMAN AND LEITER’S “LEGAL POSITIVISM” (IN
 He believes that constructive interpretation is PATTERSON’S A COMPANION TO PHILOSOPHY OF LAW AND
also the proper approach to artistic and literary LEGAL THEORY)
works, and his writings frequently compare the  Legal positivism: One of the 2 great traditions in legal
role of a judge with that of a literary critic. Both philosophy

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  TWO CENTRAL BELIEFS: (1) Social thesis (What counts as  Positivists do not deny that there may be a great deal of overlap
law in any particular society is fundamentally a matter of social between a community’s law and its morality, both its positive and
fact or convention; and (2) Separability thesis (There is no critical morality.
necessary connection between law and morality.)  Accounts of legality are often driven by accounts of
authority. (Positivism has often proved attractive because of
JURISPRUDENCE AND SUBJECT MATTER natural law theory’s failure to account adequately for either.)
 Jurisprudence aims to give a satisfactory analysis of the uses to  Practical Authority: A person or institution whose directives
which the concept of “law” is put in various social provide individuals with a reason for acting (in compliance with
practices. those dictates)
o Analysis must account for two features of concept: (1)  Natural law: For in order to be law, a norm must be required by
the criteria of legality (or, the sense that all of the morality. Morality has authority, in the sense that the fact that a
norms in society - moral, aesthetic, social - only some norm is a requirement of morality gives agents a (perhaps
subset are norms of law; and (2) the normativity (or, overriding) reason to comply with it. If morality has authority, and
authority) of law (or, our sense that “legal” norms legal norms are necessarily moral, then law has authority too.
provide agents with special reasons for acting, reasons o Critique of the Positivists is that—“[it] makes law’s
they would not have if the norm were not a legal ” one.) authority redundant on morality’s.
 Distinction between positivists and natural lawyers
 DWORKIN POSITIVISM: AUSTIN VS. HART
o Moral principles can be legally binding in virtue of the  Austin’s WILL OR COMMAND THEORY OF LAW
fact that they express an appropriate dimension of o Law is the order of a “sovereign” backed by a threat of
justice or fairness. sanction in the event of non-compliance.
o Distinction between the conditions of legality (or legal o A norm is law, then, only if it is the command of a
validity) and the meaning of a valid legal rule sovereign. Legality, on this account, is determined
 Dworkin does not claim that the validity of by its source – that is, the will or command of a
legal principles depends on their morality, sovereign – not its substantive merits. The criteria of
but he does believe that in interpreting the legality are matters of fact, not value.
meaning of valid legal rules it is often  HART
necessary to consult moral principles. o Critiqued Austin, saying that by treating the sovereign as
o Distinctive feature of Dworkin’s jurisprudence: Focus on a person, Austin’s account is unable to explain other
adjudication salient features of law, namely the fact that legal rules
 Central figure is judge (as supposed to the remain valid or binding even after a sovereign dies or is
central figure for positivists: the lawmaker or otherwise disempowered, even, in other words, when
legislator) that particular person no longer enjoys the habit of
obedience. It fails as well to explain the fact that the
LEGALITY AND AUTHORITY commands of a new “sovereign” can be law even though
 Hart: There is a difference between the way the law is and the she has not yet secured a habit of obedience.
way it ought to be. o Reformulated Austin’s conception of the sovereign so
o This is expressed by the account of legality given by the that the sovereign is not a person but an office.
social and separability theses.  The authority to legislate vests in the office,
o The resulting account of the criteria of legality has not in the person, except insofar as one is a
differing interpretations  “Restrictive” construal and legitimate occupant of the office. But the
“Inclusive” construal office is an institution, and institutions are

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 created by rules. The rules that create offices  Convergent behavior, not acceptance from the internal point
are plainly not orders backed by threats. of view, is the key to understanding the authority of the rule
Instead, they are rules that empower or of recognition.
authorize certain actions by public officials.  What becomes, then, of Hart’s notion of the internal point of
o Not all laws are liberty limiting in the way in which view?
Austin envisions; rather, some laws expand liberty. 1. What Hart offers as an analysis of a social rule as in
They are enabling, or what Hart calls power fact a stipulative definition of the term: a norm
conferring – expanding rather than contracting the cannot be a social rule unless it is accepted from the
scope of individual freedom by giving legal effect or internal point of view. In that case, the internal point of
force to personal choices. Some rules confer power on view is a necessary condition of a norm’s being a social
private individuals while those that create offices confer rule.
power and authorize public persons. 2. Acceptance, then, from the internal point of view
o For Hart, law consists of rules of two distinct types: may be both a necessary condition of a normative
primary rules that either limit or expand liberty; and practice constituting a social rule and a reliable
secondary rules that are about the primary rules. indicator that a practice or rule is normative. But, it
 Hart distinguishes among three different kinds of is not this fact about social rules that explains their
secondary rules: those that create a power to normative force. Instead, convergence does the
legislate; others that create a power to normative work.
adjudicate; and finally a rule of recognition.
o In place of Austin’s reliance on sanctions as a JUDICIAL DISCRETION
source of law’s authority, Hart emphasizes the idea  Dworkin explains Hart’s position in terms of four basic tenets:
that law consists in rules, in particular, social rules. (1) the rule of recognition; (2) the model of rules, that is, the
 There is a difference between what people do as claim that all legally binding norms are rules; (3) the separability
a rule and what they do when they are following thesis; and (4) judicial discretion, that is, the constrained
a rule. authority of judges to appeal to standards other than those
 Social rules, in short, are then normative in a legally binding on them in order to resolve controversial legal
way that habits of obedience are not. disputes.
 Legal rules are binding with respect to their core instances: no
AUTHORITY OF LAW rational, competent speaker of the language could deny that the
 Two distinct views about the role of social rules in rule applies in such cases.
explaining the authority of law:  With respect to the penumbra of a concept, rational
1. Law is authoritative because it consists in social rules. disagreement is possible and the law dictates no particular
2. The rule of recognition is a social rule whose authority answer. The judge must exercise discretion and, in effect,
depends on its being accepted from the internal point of legislate meaning. In doing so, judges typically appeal to
view by the relevant officials - judges. moral principles and social policies that are not themselves
 Problems with the second view: (1) It does not follow that rules binding legal standards.
valid under the rule of recognition are authoritative in virtue of  Dworkin agrees with Hart that judges will appeal to moral
their validity under the rule of recognition; and (2) The authority principles to resolve disputes. Unlike Hart, however, he argues
of the rule of recognition does not derive from it being a social that such norms are not extralegal standards, but are instead
rule – that is, it being accepted from an internal point of view. binding legal standards.
 Two components of social rules: (1) Description of what o Evidence? The fact that, judges regard them so.
individuals do as a rule; and (2) their being accepted from an o They are part of the law because they express a
internal point of view. dimension of justice or fairness suitable to law.
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  CENTRAL POINT: Positivism can allow moral principles to be o COUNTERARGUMENT: Incorporationism does not
legally binding standards provided their being law depends on entail the absence of a pedigree or noncontentful
their satisfying a condition in the rule of recognition. criterion of legality.
o It is not their morality as such that makes them law; 3. Positivism is committed to the rule of recognition serving an
rather, it is the fact that they meet the demands set forth epistemic function (meaning, by consulting it, individuals can
in the rule of recognition. determine for themselves what the law is and what it
o Allowing moral principles to be legally binding in this way requires of them), which incorporationism runs contrary to.
saves both the separability thesis and the rule of o COUNTERARGUMENT: We can distinguish
recognition. between two different epistemic functions the rule of
 The separability thesis is saved because what recognition might be asked to serve: validation and
makes even moral principles binding law is that identification. Legal positivism is committed to the
they are recognized as such under a rule of rule of recognition’s serving a validation function.
recognition, not their truth. The rule of Nothing in incorporationism threatens the rule of
recognition is saved just because the legality of recognition’s ability to serve that function.
all norms – including moral principles – depends 4. Positivism is committed to the rule of recognition being a
on establishing that they satisfy the demands set social rule, but as it is, incorporationism renders the rule of
forth in the rule of recognition. recognition incapable of being a social rule.
 Implication? Increasing the set of binding legal standards by o COUNTERARGUMENT: A social rule requires a
incorporating controversial moral principles into law may actually pattern of convergent behavior. A rule of recognition
increase the extent of discretion, owing to problems of that incorporates morality will generate
vagueness and controversy. disagreement because officials will disagree about
its requirements or instantiations. Nevertheless,
INCORPORATIONISM AND LEGALITY their behavior converges in the requisite way.
 Incorporationism depends on a rule of recognition
incorporating morality into law. RAZ’ THEORY OF AUTHORITY
 Dworkin denies that legal positivists can be  What we ought to do depends on the reasons that apply to us –
incorporationists in this sense, and offers four different reasons that would ground or justify one or another course of
objections to a positivist’s attempt to incorporate morality conduct. We can suppose that there are good moral reasons and
into law through the rule of recognition. good prudential reasons, and that the balance of reasons will,
1. A rule of recognition that includes reference to moral typically, settle for us what we ought to do.
principles will violate the separability thesis. o To say that the law is a practical authority is to say
o COUNTERARGUMENT: The claim that there is no that it provides an independent and different reason
necessary connection between law and morality. It for acting that figures in the decisions of agents as
does not preclude a rule of recognition from to what they ought to do.
incorporating morality into law. It only precludes o Relationship between the reasons that law supplies and
positivism from claiming that law must necessarily those that already apply  the demands of right reason.
incorporate morality into law. o THREE POSSIBILITIES: (1) the reasons law supplies
2. Positivism is committed to the idea that what makes might be generally unrelated to the demands of right
something law depends on its history or the form and reason, thus giving us more reasons to think about; (2)
manner of its enactment (meaning, legality, for a positivist, they might, in general, conflict with the demands of right
cannot depend on the substantive value of a norm or the reason; or (3) they might generally coincide with those
truth of a moral principle), which incorporationism violates. demands.

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  NORMAL JUSTIFICATION THESIS: In order for law to be a they believe that the behavior of others reflects an understanding
practical authority, it must be the case that for each agent for of what the appropriate standards of validity are.
whom law is an authority, that agent would more fully or  Thus, while the account given so far draws a distinction
satisfactorily comply with the demands of right reason that apply between the authority of the rule of recognition and the
to him by acting on the basis of the reasons law supplies than he authority of rules subordinate to it, the same general
would do otherwise account is at work in both.
 Right reason  NOT utilitarian, but coordinative function
 There are times when each of us would do better following the CONCLUSION
law than we would acting directly on the basis of right reason.  As a rule, positivists have focused primarily on issues
Typically, these are cases involving problems of coordination or pertaining to the concepts of legality and authority. Central
uncertainty. The claim to legal authority is based on the thought to positivism’s analysis of legality is the institutional nature
that the reasons law provides replace the reasons that otherwise of law; central to its analysis of authority is the idea of
apply to us because acting on the former will enable us more efficacy.
fully to comply with the demands of the latter than we will by o Individual positivists, as the foregoing has made
acting on the basis of them directly. clear, differ significantly on how the details of
legality and authority are best explained.
INCORPORATISM AND AUTHORITY
 Dworkin and Raz both believe that legal positivism cannot
allow incorporationism.
 The burden for the Razian is to explain the role of moral
principles in law without resorting to incorporationism; the burden
for the incorporationist is to provide a theory of authority that is
positivistic in spirit and compatible with incorporationism.
 The rule of recognition must serve an identification function
for the following reason: law is an authority only if individuals
acting on the basis of it will do better in complying with the
demands of right reason than they would do otherwise.
o For individuals to act on the basis of law’s directives,
however, they have to be aware of what the law requires
of them. That means that the rule of recognition must
make the law accessible to them – it must fulfill the
epistemic function of identifying what the law is.
 Even if the rule of recognition served an identification function, it
would not follow that the considerations brought to bear on the
question of identification would coincide entirely with those that
are relevant to justification.
 The authority of the rule of recognition depends ultimately
on considerations of coordination and knowledge. The same
is true with respect to the authority of rules subordinate to the
rule of recognition. With respect to the rule of recognition,
officials have reason to comply with what others do as a rule if
they want to coordinate their behavior with what others do, or if

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V. THE RULE OF LAW common law decision-making, judge by judge, case by
A. BINGHAM’S “RULE OF LAW” case
 Raz: Rule of law as a shorthand description of the positive
PART I aspects of any given political system
CHAPTER 1: THE IMPORTANCE OF THE RULE OF LAW  Finnis: Rule of law as the name commonly given to the state of
 Expression ‘RULE OF LAW’  Professor Dicey’s book An affairs in which a legal system is legally in good shape
Introduction to the Study of the Law of the Constitution (1885)  Shklar: Rule of law may have become meaningless due to the
 Aristotle: ‘It is better for the law to rule than one of the citizens’ ideological abuse and the general over-use
and ‘so even the guardians of the laws are obeying the laws’  Carothers: There is also no uncertainty about what the essence
 Justice Blackburn (1866): ‘contrary to the general rule of law, of the rule of law actually is.
not only in this country, but in every other, to make a person  Waldron (commenting in Bush v. Gore): Rule of law as ‘[h]ooray
judge in his own case…’ for our side’
o Blackburn also coined the term, “The Supremacy of the  Tamanaha: Rule of law as ‘an exceeding elusive notion’ giving
Law.” rise to a ‘rampant divergence of understandings’ and analogous
to the notion of the Good in the sense that ‘everyone is for it, but
DICEY’S 3 MEANINGS TO THE RULE OF LAW have contrasting convictions about what it is.’
1. No man is punishable or can be lawfully made to suffer in
body or goods except for a distinct breach of law RULE OF LAW
established in the ordinary legal manner before the ordinary  ‘Rule of Law is too uncertain and subjective an expression to be
courts of the land; meaningful.’
(What this means is that is anyone is to penalized, it must not be o OBJECTIONS:
for breaking some rule dreamt up by an ingenious minister or (1) In cases without number, judges have referred to the
official to convict us. It must be a proven breach of the rule of law when giving their judgements.
established law of the land. And it must be a breach e.g., Case concerned with an increase made by the
established before the ordinary courts of the land, not a Home Secretary in the term to be served by a
tribunal of members picked to do the government’s bidding, young convicted murderer, Lord Steyn 
lacking the independence and impartially expected of “Parliament must be presumed not to legislate
judges.) contrary to the rule of law. And the rule of law
2. No one is above the law, and all are subject to the same law enforces minimum standards of fairness, both
administered in the same courts. substantive and procedural.”
(This points to the idea of the rule of law as a characteristic of (2) References to the rule of law are now embedded in
our country not only that with us, no man is above the law, but international instruments of high standing.
that here, every man, whatever be his rank or condition, is e.g.,
subject to the ordinary law of the realm and amenable to the 1. UDHR (*preamble)  ‘Essential, if man is not to
jurisdiction of the ordinary tribunals.) be compelled to have a recourse, as a last result, to
o Fuller: ‘Be you never so high, the Law is above you.’ rebellion against tyranny and oppression, that
3. ‘The rule of law’ or the predominance of the legal spirit may human rights should be protected by the rule of law.’
be described as a special attribute of English institutions. 2. European Convention of Human Rights 
(What this means is that the constitution is pervaded by the rule Referred to the governments of European countries
of law on the ground that the general principles of the as having a ‘common heritage of political traditions,
constitution are with us the result of judicial decisions xxx) ideals, freedom, and the rule of law…’
o Had no belief in grand declarations of principle 
Preferred to rely on the slow, incremental process of
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 3. Treaty on the EU  ‘The union is founded on 40. To no one will we sell, to no one deny or delay right or
principles of liberty, democracy, respect for human justice.
rights and fundamental freedoms, and the rule of
law, principles of which are common to the Member  Magna Carta was annulled by the Pope on the ground that it
States.’ was extracted from King John by duress.
(*There is a strong international consensus that the  It was not at that state a statute (There was nothing
rule of law is a meaningful concept, and an recognizable as a parliament.).
important one at that. This is supported by the fact  It did not embody the principles of jury trial, which was still in
that in various Constitutions, the rule of law is cited its infancy, or habeas corpus, which had yet to be invested.
as the founding values of states.)  For all the criticisms against it, the sealing of the Magna
(3) Rule of law is now referred to in the British statute. Carta was an event that changed the constitutional
e.g., Constitutional Reform Act, which states that the landscape, and the world. Why?
Act does not adversely affect ‘(a) the existing (1) In contrast with other European charters of the period, it
constitutional principle of the rule of law’ was a grant to all free men throughout the realm. (Of
course, not all men or women at the time were free, but
*KEY POINT: At the core of the principle is that, all persons it assumed a legal parity among all free men,
andauthorities within the state, whether public or private, should be contributing to a sense of community.)
bound by and entitled to the benefit of laws publicly made, taking (2) The charter was not an instant response to the
effect (generally) inthe future and publicly administered in the oppression and exactions of a tyrannous king. (Not King
courts. John’s ‘the smack of firm government.’ But drew heavily
 Locke: ‘Where the law ends, tyranny begins.’ on earlier models – Henry I’s charter of liberties and
 Paine: ‘For as in absolute governments the King is law, so in coronation oaths of previous kings.)
free countries the law ought to be King; and there ought to be no i.e., Henry I’s charter  Non-election manifesto,
other.’ promised relief from the evil custom and oppressive
 “But belief in the rule of law does not import unqualified taxation of the previous reign, but also forbade the
admiration of the law, or the legal profession, or the courts, or imposition of excessive penalties and required that
the judges. It does, however, call on us to accept that we would penalties should fit the crime, reflecting the nature of the
very much rather live in a country which complies, or at least offence; The coronation oath included a promise to
seeks to comply, with the principle I have stated than in one exercise justice and mercy in all judgments.
which does not.” (3) The Charter was important because it represented and
expressed a clear rejection of unbridled, unaccountable
royal power, an assertion that even the supreme power
CHAPTER 2: SOME HISTORY in the state must be subject to certain overriding rules.
IMPORTANT HISTORICAL MILESTONES [on the way to the rule of (4) The significance of Magna Carta lay not only in what it
law as we know it today] actually said but, perhaps to an even greater extent, in
1. MAGNA CARTA 1215 what later generations claimed and believed it had said.
Chapters 39 and 40 (translated from Latin) provides: (Sometimes the myth is more important than the
actuality.)
39. No free man shall be seized or imprisoned or stripped of his  Sir James Wilson: ‘Magna Carta was not a sudden intrusion
rights or possessions, or outlawed or exiled, or deprived of his into English society and politics. On the contrary, it grew out of
standing in any other way, nor will we proceed with force against them … Laymen had been assuming, discussing and applying
him, or send others to do so, except by the lawful judgment of his the principles of Magna Carta long before 1215. They could
equals or by the law of the land. grasp it well enough.’
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 he had any. The jury decided not to confess. So, to overcome the
2. HABEAS CORPUS (or, Habeas Corpus Ad Subjiciendum) whether he was guilty or not. latter difficulty, the authorities
 The issue of a writ to secure the presence in court of a resorted to torture to force the
defendant or criminal subject  A welcome sign that even defendant to confess, not as an
at that stage, judges preferred to make orders when the exceptional or isolated occurrence
party to be charged was before them. but as a routine regularly followed.
 Sir William Holdsworth: “‘Without the inspiration of a

th
general principle with all the prestige of Magna Carta From a very early date, not later than the 15 century, the
behind it, this development could never have taken place; common law of England adamantly set its face against the
and equally, without the translation of that principle into use of torture and the admission of evidence procured by
practice, by the invention of specific rits to deal with cases torture.
of infringement, it could never have taken practical shape.”  In rejecting the use of torture, whether applied to potential
 Literally translates to, “you have the body” defendants or potential witnesses, the common law courts
o Procedurally, what this implies is that, “the Governor were moved by 3 considerations:
must appear in court, confirm that A.B. is in his custody, (1) the cruelty of the practice as applied to those
state when A.B. was so detained and, crucially, show unconvicted of any crime;
good legal cause for detaining him, usually a valid order (2) the inherent unreliability of the evidence in confessions
of a court. If he shows good legal cause, A.B. will so procured, since a person subjected to unbearable
continue to languish where he is. If he does not, the pain will say anything which will cause the pain to stop;
judge will order A.B. to be released. and
 Chief Justice Vaughan (in Bushell’s case): ‘The writ of habeas (3) a belief that the practice degraded all who had anything
corpus is now the most usual remedy by which a man is restored to do with it, including the courts if they received or relied
again to his liberty, if he have been against law deprived of it.’ on the fruits of such treatment.
 Despite this rejection of torture by the common law courts,
th
3. THE ABOLITION OF TORTURE the practice of torture continued in England in the 16 and
 History of Medieval England  Trial by ordeal (History books th
early 17 centuries.
used to contain pictures and descriptions, where the suspect o But this took place pursuant to warrants issued by
was required to hold a piece of molten iron, or was the royal Council on behalf of the Crown, very
immersed in water, and if he survived without septicaemia or largely in relation to alleged offences against the
drowning God was held to have intervened to demonstrate state (in exercise of the royal prerogative and in
his innocence.) what were called the royal prerogative courts, most
notoriously the Court of Star Chamber.)
 So what? “It was early recognition that there are some
practices so abhorrent as not to be tolerable, even when the
safety of the state is said to be at risk, even where the price
ENGLAND AND WALES CONTINENTAL EUROPE of restraint is that a guilty man may walk free. There are
The defendant was put before a to convict the defendant, there must some things which even the supreme power in the state
jury and evidence was called be two witnesses, one corroborating should not be allowed to do, ever.”
against him. One witness, if the other, or else a confession. The
believed, was enough. The practical problem was that two 4. THE PETITION OF THE RIGHT 1648
defendant could not himself witnesses were frequently  FIVE KNIGHTS’ CASE
testify, but could call witnesses if unavailable and the defendant chose

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 o Moved by hostility to the Duke of Buckingham, the Clause VIII—
House of Commons in 1625 and 1626 denied They do therefore humbly pray your most excellent majesty that
Charles I the means to conduct military operations no man hereafter be compelled to make or yield any gift, loan,
abroad which Buckingham was to command. The benevolence, tax or such like charge without common consent
King was unwilling to give up his military ambitions by act of parliament, and that none be called to make answer
and resorted to the expedient of a forced loan to or take such oath or to give attendance or be confined or
finance it. otherwise molested or disquieted concerning the same or
o A number of those subject to this imposition declined for refusal thereof. And that no freeman in any such manner as
to pay, and some were imprisoned (among them is before mentioned be imprisoned or detained. And that your
those who became famous as ‘the Five Knights’: Sir Majesty would be pleased to remove the said soldiers and
Thomas Darnel, Sir John Corbet, Sir Walter Erle, Sir mariners, and that your people may not be so burdened
John Heveningham and Sir Edmund Hampden.). in time to come. And that the aforesaid commissions for
Each of them sought a writ of habeas corpus to proceeding by martial law may be revoked and annulled. And
secure his release. that hereafter no commissions of like nature may issue forth to
o Their hope was that non-payment of the loan would any person or persons whatsoever to be executed as aforesaid,
be given as the reason for their imprisonment, lest by colour of them any of your Majesty’s subjects be
whereupon the lawfulness of the loan could be destroyed or put to death contrary to the laws and franchises of
challenged and investigated in court. But the Crown the land.
frustrated this hope by stating that the initial
commitment and continued detention of the knights 5. SIR MATTHEW HALE’S RESOLUTIONS
was ‘per speciale mandatum domini regis’, by his  Sir Matthew Hale’s list of ‘Things Necessary to be
majesty’s special commandment. Continually had in Remembrance’ (Hale was Chief Justice of
o Those detained were released once the collection of the King’s Bench from 1671 to 1676 and his list dates from
the loan was complete, shortly after the hearing. the 1660s, being rules composed by him to guide his own
 Detention at the instance of the executive conduct as a judge.)
without charge or trial was not without (1) That in the administration of justice, I am entrusted for
precedent at the time. God, the King and Country; and therefore
 [T]he question inevitably arose whether the (2) That it be done (1) Uprightly (2) Deliberately (3)
power of the King to detain without charge Resolutely.
or trial was subject to any legal constraint, (3) That I rest not upon my own understanding or strength,
and if so what. but implore and rest upon the direction and strength of
 Sir Thomas Wentworth: Expressed the hope that ‘it shall God.
never be stirred here whether the King be above the law or (4) That in the execution of justice, I carefully lay aside my
the law be above the King’ own passions, and not give way to them however
 For if one of the ingredients of these debates was distrust of provoked.
the King, another was doubt about the capacity of the (5) That I be wholly intent upon the business I am about,
common law to protect the subject. remitting all other cares and thoughts as unseasonable
o Sir Robert Phelips: ‘If this be law, what do we talk and interruptions.
of our liberties?’ (6) That I suffer not myself to be prepossessed with any
o The leadership chose to restore trust in the law, and judgment at all, till the whole business and both parties
that precluded any workable settlement with the be heard.
King.

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 (7) That I never engage myself in the beginning of any receive no private representation concerning a pending
cause, but reserve myself unprejudiced till the whole be case, and would keep the conduct of cases in his own
heard. personal hands.”
(8) That in business capital, though my nature prompts me
to pity, yet to consider that there is also pity due to the 6. THE HABEAS CORPUS AMENDMENT ACT 1679
country.  Following the restoration of the monarchy after the civil war
(9) That I be not too rigid in matters purely conscientious, and the Cromwellian Commonwealth, King Charles II’s chief
where all the harm is diversity of judgment. minister was the Earl of Clarendon.
(10) That I be not biased with compassion to the poor, or o He, in the exercise of his executive powers, made a
favour to the rich in point of justice. practice of dispatching prisoners to outlying parts of
(11) That popular or court applause or distaste, have no what is now the United Kingdom for the very reason
influence into any thing I do in point of distribution of that in those places the writ of habeas corpus did not
justice. run, because it was at the time a remedy local to
(12) Not to be solicitous what men will say or think, so long England and Wales. Thus, the prisoners were
as I keep myself exactly according to the rule of justice. unable to challenge the lawfulness of their detention,
(13) If in criminals it be a measuring cast, to incline to mercy as Clarendon intended that they should be.
and acquittal. o [W]hen Clarendon fell from power, he was
(14) In criminals that consist merely in words when no more impeached.
harm ensues, moderation is no injustice.  One of the charges against him was that he
(15) In criminals of blood, if the fact be evident, severity in had sent persons to ‘remote islands,
justice. garrisons, and other places, thereby to
(16) To abhor all private solicitations of whatever kind soever prevent them from the benefit of the law’.
and by whomsoever in matters depending. o Clarendon fled, and later died in exile.
(17) To charge my servants (1) Not to interpose in any  Claredon’s  US Government in Guantanamo Bay (2001-
business whatsoever; (2) Not to take more than their 2009)
known fee; (3) Not to give undue preference to causes;
(4) Not to recommend counsel. 7. THE BILL OF RIGHTS 1689 AND THE ACT OF SETTLEMENT
(18) To be short and sparing at meals that I may be fitter for 1701
business.  Revolution of 1688 to 1689 (James II was expelled and
 [I]t lays down guidelines which would still today be regarded replaced by William III and his wife, Mary II) (*Peaceful)
as sound rules for the conduct of judicial office. o William of Orange was offered the throne, but only if
 “Hale recognized, that judges are servants of the public he was willing to accept the terms on which it was
whose important work calls for their serious, single-minded, offered.
professional attention. He knew that he should try to exclude  There was a constitutional compact, not of
his personal feelings, avoid taking up any partisan position the kind which political philosophers
and suspend judgment until all the evidence and both parties hypothesize but one negotiated between the
had been heard. He acknowledged that in matters of life and prospective monarch and the political
death (‘business capital’) the interests of the criminal must leaders of the day. It is known to history as
be weighed against those of the public and the victim, and the Bill of Rights 1689.
violent crimes might require severe penalties, but where the o [T]he Bill of Rights 1689 was only in part directed to
balance was even he inclined towards acquittal and mercy. the protection of individual rights. Its main focus was
His resolution was to do what was just, irrespective of public on the rules to which the Crown should be subject.
opinion. He would favour neither rich nor poor. He would
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 (1) No monarch could again rely on divine authority This Constitution, and the Laws of the United States which shall
to override the law. be made in pursuance thereof; and all Treaties made, or which
(2) The authority and independence of Parliament shall be made, under the Authority of the United States, shall be
were proclaimed; the integrity of its proceedings the supreme Law of the Land; and the Judges in every State
was protected and there could be no standing shall be bound thereby, any Thing in the Constitution or Laws of
army in time of peace without its sanction. any State to the Contrary notwithstanding.
(3) The power to suspend laws without the consent
of Parliament was condemned as illegal. So was  Thus, the Congress (Article I), the President (Article II) and the
the power of dispensing with laws or the federal judiciary (Article III) were to have such powers as were
execution of laws ‘as it hath been assumed and conferred by or under the Constitution, and none other. (This
exercised of late’, a provision which later contrasted, and continues to contrast, with the legislative
legislation was intended to clarify, but never did. omnipotence theoretically enjoyed by the Crown in Parliament in
(4) Personal liberty and security were protected by the UK.)
prohibiting the requirement of excessive fines,
the imposition of excessive bail, and the infliction 9. THE FRENCH DECLARATION OF THE RIGHTS OF MAN AND
of ‘cruel and unusual punishments’. THE CITIZEN 1789
(5) Jury trial was protected.  [D]rafted and put forward by the Marquis de Lafayette, who
 The committee which drafted the Bill of Rights was alert to had returned from America inspired by the principles
this point, and included in their first draft a provision enshrined in the American Declaration of Independence
safeguarding the tenure of the judges and protection of their  It provided that—
salaries. “It declared that men were born and remained free and equal
o This, however, was dropped when it was decided (in in rights; that the aim of all political association was to
the face of resistance by William of Orange) that the preserve the natural and imprescriptible rights of man; that
Bill should confirm old rights and not create new sovereignty rested in the nation; that liberty consisted in
ones. freedom to do anything which was not injurious to others;
 A truly independent judiciary is one of the strongest that the law could only prohibit such actions as were harmful;
safeguards against executive lawlessness; it thus becomes that law was an expression of the general will; that no one
a victim of authoritarian governments should be accused or arrested or imprisoned except in cases
and according to forms laid down by law; that the law should
8. THE CONSTITUTION OF THE USA provide for only such punishments as were strictly and
 [G]round-breaking in its enlightened attempt to create a obviously necessary, and should not permit retrospective
strong and effective central government while at the same penalization; that as persons were held to be innocent until
time preserving the autonomy of the individual states and (in proved guilty, all unnecessary harshness in their initial
the first ten amendments) preserving the fundamental rights treatment should be avoided; that no one should be
of the individual against a ‘form of elective despotism’. harassed on account of his opinions and religious beliefs,
 [G]round-breaking in being the product not of dictation by a provided they did not disturb public order; that the free
ruling clique but of wide-ranging, very high quality debate communication of ideas was one of the most precious rights;
and genuine democratic endorsement. that protection of the rights of man and the citizen required
 Most revolutionary of all, however, was the Constitution’s that there be military forces; that a common contribution to
enthronement of the law. the expenses of the state was necessary; that there should
be a right to vote on taxation; that society had the right to
Article VI of the Constitution— require public officials to account for their administrative
acts; that a society in which the observance of the law was
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 not assured, nor the separation of powers defined, had no In all criminal prosecutions, the accused shall enjoy the
constitution at all; and, finally, that since property was an right to a speedy trial by an impartial jury of the State
inviolable and sacred right, no one was to be deprived of it and district wherein the crime shall have been
save where public necessity demanded it, and then he committed, … , and to be informed of the nature and
should be compensated.” cause of the accusation; to be confronted with the
witnesses against him; to have compulsory process for
10. THE AMERICAN BILL OF RIGHTS obtaining witnesses in his favor, and to have the
 First 10 amendments to the US Constitution— Assistance of Counsel for his defence.
(1) Article I, framed to restrict the exercise of legislative (7) Article VII preserves the right to trial by jury in any civil
power, provides that ‘Congress shall make no law case where the sum in dispute exceeds $20.
respecting an establishment of religion, or prohibiting the (8) Article VIII, borrowed from the British Bill of Rights
free exercise thereof; or abridging the freedom of provides: ‘Excessive bail shall not be required, nor
speech, or of the press; or the right of the people excessive fines imposed, nor cruel and unusual
peaceably to assemble, and to petition the government punishments inflicted.’
for a redress of grievances.’ (9) Article IX provides for the retention of existing rights not
(2) Article II lays down that ‘A well regulated Militia, being enumerated in the Constitution.
necessary to the security of a free State, the right of the (10) Article X for the reservation to the States of powers not
people to keep and bear Arms, shall not be infringed.’ delegated to the Federal government by the
(3) Article III is directed to the billeting of soldiers in time of Constitution.
peace and war, no doubt a live issue in the aftermath of  The American Bill of Rights was the subject of a protracted
the American Revolution. struggle, but the rights guaranteed in 1791 are rights which
(4) Article IV is of more general significance: ‘The right of American citizens continue to enjoy.
the people to be secure in their persons, houses, papers
and effects, against unreasonable searches and 11. THE LAW OF WAR
seizures, shall not be violated, and no Warrants shall  [T]he attempt to establish legally recognized standards of
issue, but upon probable cause, supported by Oath or state conduct, even in relation to the use of force (the ius ad
affirmation, and particularly describing the place to be bellum, now governed by the United Nations Charter) and
searched, and the persons or things to be seized.’ the conduct of war or armed conflict (the ius in bello)
(5) Article V reflected British practice at that time, since  Rules to restrain the brutality inherent in war were familiar in
modified in some respects: classical times and during the Middle Ages.
No person shall be held to answer for a capital, or  Over the last century and a half decisions of international
otherwise infamous crime, unless on a presentment or courts and tribunals and the opinions of the learned have
indictment of a Grand Jury, except in cases arising in the been influential in setting the standards of permissible
land or naval forces, or in the Militia, when in actual conduct in war, but the scene has been dominated by a
service in time of War or public danger; nor shall any plethora of international conventions addressing different
person be subject for the same offence to be twice put in aspects of this multi-faceted subject.
jeopardy of life and limb; nor shall be compelled in any o Dunant’s A Memory of Solferino  Geneva
criminal case to be a witness against himself, nor be Convention on the Treatment of the Wounded and
deprived of life, liberty, or property, without due process the foundation of the International Committee of the
of law; nor shall private property be taken for public use, Red Cross
without due compensation. o Tsar Alexander II  1868 St Petersburg
(6) Article VI, again, both reflects and goes beyond British Declaration Renouncing the Use, in Time of War, of
practice at the time: Explosive Projectiles under 400 Grammes Weight
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 o Alexander II and his grandson, Nicolas II  First
Hague Peace Conference (3 conventions and 3
declarations)
o President Roosevelt and Tsar Nicholas II 
Second Hague Peace Conference (13 convention
and 1 declaration, most of them directed to the
conduct of war on land and sea)
o 1948 United Nations Convention on the Prevention
and Punishment of the Crime of Genocide and 1998
Rome Statute of the International Criminal Court
 “It is easy to disparage all these rules as ineffective and
difficult to enforce. xxx But to the extent that the rules have
led to anyone –combatants, wounded, prisoners of war,
women, children, civilians, non-combatants – being spared
the full horror of unrestrained warfare, they must be
accounted a victory for the rule of law.”

12. THE UNIVERSAL DECLARATION OF HUMAN RIGHTS

 Adopted by the GA of the newly formed UN on 10 December
1948
 Declaration was not (and is not) binding
 Provided the common standard for human rights upon which
formal treaty commitments have subsequently been founded
 [I]nspired 1. the International Covenant on Civil and Political
 Rights 1966, 2. the International Covenant on Economic,
Social and Cultural Rights 1966, 3. the International
Covenant on the Elimination of All Forms of Racial
Discrimination 1966 and regional treaties such as 1. the
European Convention on Human Rights 1950, the American
Convention on Human Rights 1969, 2. the African Charter
on Human and Peoples’ Rights 1981, and 3. The Arab
Convention on Human Rights 1994
 Pope John XXIII’s Pacem in Terris: ‘an act of the highest
importance’
o And the role of leadership was exercised by four
people in particular: Eleanor Roosevelt, René
Cassin, Charles Malik of Lebanon and P. C. Chang
of China.

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PART II circumstances of the legal rules applicable to a given case
CHAPTER 3: THE ACCESSIBILITY OF THE LAW … a norm cannot be regarded as a ‘law’ unless it is
formulated with sufficient precision to enable the citizen to
8 PRINCIPLES regulate his conduct: he must be able – if need be with
(NOTE – 8 principles are spread out across chapters. –BB) appropriate advice – to foresee, to a degree that is
(1) The law must be accessible and so far as possible reasonable in the circumstances, the consequences which a
intelligible, clear and predictable. given action may entail.”
Why?
(a) [W]e ought to be able, without undue difficulty, to find out *SOURCES OF LAW: (1) Statute laws, (2) Judge-made law,
what it is we must or must not do on pain of criminal penalty. and (3) the law of the European Union
(NOTE - One important function of the criminal law is to
discourage criminal behaviour, and we cannot be Two important conditions in judge-made law:
discouraged if we do not know, and cannot reasonably easily 1. (However, many separate judgments are given and
discover, what it is we should not do.) whether or not some members of the court dissent) [T]he
(b) If we are to claim the rights which the civil (that is, non- principle of law laid down by the court (or the majority of
criminal) law gives us, or to perform the obligations which it it) should be clear.
imposes on us, it is important to know what our rights or 2. Judges have a role in developing the law. (But, [t]he
obligations are. Otherwise we cannot claim the rights or judges may not develop the law to create new criminal
perform the obligations. offences or widen existing offences so as to make
(c) It is that the successful conduct of trade, investment and punishable conduct of a type hitherto not subject to
business generally is promoted by a body of accessible legal punishment, for that would infringe the fundamental
rules governing commercial rights and obligations. (No one principle that a person should not be criminally
would choose to do business, perhaps involving large sums punishable for an act which was not criminal when it was
of money, in a country where the parties’ rights and done.)
obligations were vague or undecided.)

ON THE RULE OF LAW AND ECONOMIC GROWTH—

‘The rule of law is usually thought of as a political or legal
matter… But in the past ten years the rule of law has
become important in economics too… The rule of law is held
to be not only good in itself, because it embodies and
encourages a just society, but also as a cause of other good
things, notably growth.’

LORD DIPLOCK ON THE RULE OF LAW—“The

acceptance of the rule of law as a constitutional principle
requires that a citizen, before committing himself to any
course of action, should be able to know in advance what
are the legal principles which flow from it.”

EUROPEAN COURT ON HUMAN RIGHTS ON RULE OF

LAW—“ [T]he law must be adequately accessible: the citizen
must be able to have an indication that is adequate in the
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VI. SPECIAL TOPICS o On nature: minimal conditions that any consideration
A. WEINRIB’S “LEGAL FORMALISM” (IN PATTERSON’S A must observe if it is to be justificatory.
COMPANION TO PHILOSOPHY OF LAW AND LEGAL THEORY) o On structure: the most abstract and comprehensive
 “Formalism reflects the law’s most abiding aspiration: to be an patterning of justificatory coherence.
immanently intelligible normative practice.” o On ground: the presuppositions about agency that
ultimately account for the normative character of any
THE PROJECT OF FORMALISM justification.
 Formalism as a theory of justification
o As a theory of justification, considers law to be not
merely a collection of posited norms or an exercise NATURE OF JUSTIFICATION
of official power, but a social arrangement  Goals, such as compensation and deterrence, that focus on
responsive to the moral argument. each litigant independently cannot provide the moral
o As a theory of legal justification, focuses on the underpinning for the relationship between plaintiff and defendant.
phenomena most expressive of the juridical aspect  A justification justifies: it has normative authority over the
of our social lives. material to which it applies.
 On legally significant interactions between o The point of adducing a justification is to allow that
parties and on the role of courts in resolving the authority to govern whatever falls within its scope.
consequent controversies o A consideration that functions as a justification must be
 Formalism’s project  To elucidate forms of moral argument permitted, as it were, to expand into the space it
appropriate to adjudication among interactive parties naturally fills. Consequently, a justification sets its own
 Basic unit of formalist analysis  LEGAL RELATIONSHIP limit.
o Law connects one person to another through the  Formalism asserts that formal considerations are prior to
ensemble of concepts, principles, and processes that substantive ones.
come into play when a legal claim is being asserted. o Accordingly, formalism ’ s initial concern is not with a
o Interest in the internal structure of such relationships justification’ s substantive merit, but with the minimal
 Relationships’ components (i.e., doctrines, condition for its functioning as a justification – namely,
concepts, principles, and processes) are part of that it fills its own conceptual space.
the totality o Purported justifications that do not respect that condition
o How do the parts relate to the totality that they form? Is a are not so much villains as imposters: they are not doing
legal relationship an aggregate of autonomous elements, something wrong, but they are pretending to be what
so that these parts are connected to one another only they are not.
through their contingent juxtaposition within the same
legal relationship, like so many grains in a heap of sand? THE STRUCTURES OF JUSTIFICATION
Or, are the parts the interdependent constituents of an  Justificatory considerations provide moral reasons for relating
internally coherent whole? one person to another through a set of legal concepts and
o The formalist concern with the structure of a consequences.
juridical relationship is, therefore, a concern with the  Incoherence in the relationship reflects the presence of mutually
connection between justificatory considerations. independent justificatory considerations.
o Formalism  Contrasts between the ‘formal’ and  Coherence, on the other hand, is the interlocking into a single
‘substantive’ integrated justification of all the justificatory considerations that
 To understand law as a justificatory enterprise, the formalist pertain to a legal relationship.
elucidates 3 features of justification: (1) its nature; (2) its
structure(s); and (3) its ground.
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  A relationship is coherent when a single justification o By correcting the injustice that the defendant has
animates it, so that the justification’s moral force is inflicted on the plaintiff, corrective justice asserts a
congruent with the relationship’s boundaries. connection between the remedy and the wrong.
o Coherence thus denotes unity.  From the perspective of corrective justice, a
 What are the different ways in which legal relationships can court does not treat the situation being
express a single justificatory idea? Or, to put it another way, adjudicated as a morally neutral given and then
what are the different structures of legal justification? ask what is the best course for the future, all
 Classical treatment of justificatory structure  ARISTOTLE’S things considered.
DISCUSSION OF JUSTICE  Rather, because the court aims to correct the
o TWO CONTRASTING FORMS OF JUSTICE: (1) injustice done by one party to the other, the
Corrective justice (focuses on whether one party has remedy responds to the injustice and
done and the other has suffered a transactional endeavors, so far as possible, to undo it.
injustice); and (2) Distributive justice (deals with the o Aristotle’s account makes it clear that this rectification
distribution of whatever is divisible among the operates correlatively on both parties.
participants in a political community).  A remedy directed to only one of the parties
o For Aristotle, justice in both these forms relates one does not conform to corrective justice.
person to another according to a conception of equality  Aristotle’s account makes it clear that this rectifi cation operates
or fairness (the Greek to ison connotes both). correlatively on both parties.
o Injustice arises in the absence of equality, when one o A remedy directed to only one of the parties does not
person has too much or too little relative to another. conform to corrective justice.
o Justice is thereby achieved for both parties through
DISTRIBUTIVE JUSTICE CORRECTIVE JUSTICE a single operation in which plaintiff recovers
 Divides a benefit or burden in  Features the maintenance precisely what the defendant is made to surrender.
accordance with some criterion and restoration of the o A correlatively structured remedy responds to and
that compares the participants’ notional equality that undoes an injustice only if that injustice is itself
merit relative to one another consists in the interacting correlatively structured.
 Embodies a proportional parties’ having what  What this means is that [w]hat the defendant
equality* lawfully belongs to them has
(in which all participants in the  Injustice occurs when, done and what the plaintiff has suffered are not
distribution receive their shares relative to this baseline, independent items. Rather, they are the active
according to their respective one party realizes a gain and passive poles of the same injustice, so that
merits under the criterion in and the other a what the defendant has done counts as an
question) corresponding loss. injustice only because of what the defendant has
 The law corrects this suffered, and vice versa. The law then rectifies
injustice when it re - this injustice by reversing its active and passive
establishes the initial poles, so that the doer of injustice becomes the
equality by depriving one sufferer of the law’ s remedy. Only because the
party of the gain and injustice is the same from both sides does the
restoring it to the other remedy treat the parties as correlatively situated.
party.  The idea that correlativity informs the injustice, as well as its
rectification, points to the kind of justifications that are
 Corrective justice has a rectificatory function. appropriate for determinations of liability.

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 o To think of something as an injustice is not to refer to a  But if the positive law is to be coherent, any
brute event but to make a normative ascription. given relationship cannot rest on a combination
o The correlativity of the injustice is, therefore, the of corrective and distributive justifications.
correlativity of the normative considerations that underlie  When a corrective justification is mixed with a
that ascription. distributive one, each necessarily undermines
 Aristotle’ s original account contrasts the correlativity of the justificatory force of the other, and the
corrective justice with the categorically different structure of relationship cannot manifest either unifying
distributive justice. structure.
o Corrective justice links the doer and sufferer of an
injustice in terms of their correlative positions. THE GROUND OF JUSTIFICATION
o Distributive justice, in contrast, assigns shares in a  Implicit in legal justification is a conception of normativeness.
benefit or burden by comparing the parties to the o The standard assumption of legal scholarship is that
distribution in terms of a distributive criterion. normativeness is rooted in the substantive desirability of
 Instead of linking one party to another as doer and sufferer, certain goals.
distributive justice links all parties to the benefi t or burden o The correlative structure of justification in private law
they all share and to the criterion that governs the precludes the formalist from sharing this conception of
distribution. normativeness.
o For corrective justice, unity consists in a justification’s  Aspects of human well - being are not
correlative embrace of both parties to the legal intrinsically correlative.
relationship. o As sophisticated systems of private law show, the
o For distributive justice, unity consists in having the overarching justificatory categories expressive of
distributive criterion fit both the distribution’s subject correlativity are those of the plaintiff’s right and the
matter and its participants without either over - or under defendant’s corresponding duty not to interfere with that
inclusion. right.
 Each form of justice has a different organizing principle: o Unlike aspects of well - being, a right is an intrinsically
correlativity (for corrective justice) and comparison according relational idea that immediately signifies the existence of
to a distributive criterion (for distributive justice). a duty correlative to it.
o The categorical distinction between correlativity and  These rights themselves cannot, of course, be
comparison is certified by the difference between the understood as bundles of well - being, for that
numbers of parties that each admits. would merely reintroduce noncorrelative
 Corrective justice links two parties and no considerations.
more, because a relationship of correlativity is
necessarily bipolar. B. HUNT’S “MARXIST THEORY OF LAW” (IN PATTERSON’S A
 Distributive justice admits any number of COMPANION TO PHILOSOPHY OF LAW AND LEGAL THEORY)
parties, because in principle no limit exists for
the number of persons who can be compared C. LEITER’S “LEGAL REALISM” (IN PATTERSON’S A COMPANION
and among whom something can be divided. TO PHILOSOPHY OF LAW AND LEGAL THEORY)
 Because corrective justice and distributive justice are
categorically different, no external relationship can coherently D. BINDER’S “CRITICAL LEGAL STUDIES” (IN PATTERSON’S A
partake of both. COMPANION TO PHILOSOPHY OF LAW AND LEGAL THEORY)
o Aristotle’s contrast of corrective law and distributive  Critical legal studies  A movement in legal scholarship
justice does not determine whether the law should treat associated with the Conference on Critical Legal Studies
an incident correctively or distributively.  CRITICAL LEGAL STUDIES
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 o Combined the concerns of legal realism, critical doctrinal systems that are restricted by recurrent,
Marxism, and structuralist or poststructuralist literary irresolvable debates.
theory.  Doctrinal systems  Precise-sounding rules, but
o Continued to have a continuing influence on the work of rules will generally confront, or even contain,
numerous legal scholarships, particularly in the fields of counter rules that will contradict them.
legal and constitutional theory, legal history, labor and  The rules do not determine results and cannot
employment law, international law, local government explain whatever ability legal practitioners have
law, and administrative law. to predict rules.
o Contributed to the emergence of other intellectual  Liberal rights theory then is not formally realizable. Judical
movements critiquing the role of law in maintaining application of a liberal rights regime involves political discretion;
hierarchies based on sex, race, and sexual orientation. it can never be the mere formality demanded by the liberal ideal
o Influenced scholarship in interdisciplinary legal studies of the rule of law.
using the methods of humanities and the interpretive  INDETERMINACY THESIS: Claim about classical liberalism and
social sciences. its aspiration to secure liberty through a rule of law.
o No determinate rule system can secure liberty.
Critical Legal Studies as Analytic Jurisprudence: The Critique of  Observers mistakenly ascribed to critical legal scholars a
Liberal Rights Theory categorical claim that all legal rules are necessarily
 Legal scholars following in the footsteps of Hohfled, Cook, Hale, indeterminate.
and Cohen  Criticized liberal rights theory by stressing the o Indeterminacy of liberal rights jurisprudence 
economic and social interdependence of legal persons. Pragmatic, poststructuralist, or hermeutic ideas about
o Argued that such interdependence frustrated the language
classical liberal aspiration to secure a maximum sphere  Critical legal scholars also argued that doctrinal standards
of equal liberty by defining rights. requiring identification of the interests of legal actors or
 Rights as ‘relations among persons populations are indeterminate.
regarding control of valued resources’ o This implied a critique of the instrumentalist approach to
 Legal rights as correlative  “Every legal legal discision-making.
entitlement in an individual implies a correlative
vulnerability in someone else, and every TWO INDETERMINACY THESES:
entitlement is limited by the competing rights of 1. Indeterminacy of rights; and
others” 2. Indeterminacy of interests
 Property rights as delegations of sovereign
power to individuals by the state  Defined to  The indeterminacy of rights result from their correlative character
accommodate the conflicting interests of social and from the interdependence of economic actors.
actors  Because economic actors cannot exercise freedom without
 “If property rights are understood to confer power, it similarly mutual interference, rights do not secure a sphere of individual
follows that contractual bargaining is never truly equal and all autonomy beyond social scrutiny. Instead, rights are claims to
contractual consent is coerced through the exercise of superior social support for the pursuit of self-interest at other’s expense.
bargaining power.”
 Critical legal scholars argued that the liberal ideals of freedom Critical Legal Studies as Social Theory
to act without harming others, and freedom to transact with  Claim that society and politics are legally constructed
consenting others, are self-defeating.  Critical scholars did not see legal language as indeterminate
o Such ideals, according to them, cannot be realized in a relative to the social context to which it refers. Rather, they saw
legal regime and efforts to realize them will yield
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 legal language as indeterminate because of the o Each model of social choice rests on an image of society
indeterminacy of the social context to which it refers. as a competition among antagonists.
o The indeterminacy of the social world frustrates o Each model identifies normative truth as fairly compiled
instrumentalist efforts to explain or prescribe legal rules aggregate of the subjective preferences or “interests” of
on the basis of their service to certain interests. these protagonist.
 Critical legal scholars argued that no mere combination of the
The critique of instrumentalism adversary process, the electoral process, and the market can
 Legal realists tended to see legal doctrine as an empty shell, automatically produce legitimate social choice.
covertly determined by the social context they sought only, by o They rejected the notion that the interests of individuals
means of policy analysis, to make that contextual determination and groups develop independently of the processes that
overt and self-conscious. aggregate them
 Unlike realists, critical legal scholars did not treat legal doctrine  Simon’s “The Ideology of Advocacy”
as special or even a distinct case among forms of social o Argued that lawyers cannot represent their clients
knowledge, uniquely lacking in true or determinacy. without attributing to them “interests” that are recognized
 Much of critical legal scholarship is properly understood as a by the legal system as legitimate and realizable.
critique of legal realism rather than a recapitulation of it.  They could learn to live with this because the
 Peller’s “The Metaphysics of American Law” “ideology of advocacy” reassured them that the
o Argued that realism perpetuated the basic flaw of truth was the outcome of the adversary process.
formalism: its commitment to determinacy  This conception of the truth likewise allowed
o Instead of seeing the social world as determined by law, their opponents to abdicate moral responsibility
realism insisted that legal decision are and should be for the impact of their arguments on the lives of
determined by their social context. the poor.
o Legal realism subordinated rules to facts.  The adversarial ethic allowed lawyers for both
o Invoked poststructuralist literary theory in equating legal sides to act on the basis of “interests”
analysis embraced by liberal formalists with the policy manufactured by the legal system itself, rather
analysis embraced by legal realists than its own values.
 Horwitz’ “The Transformation of American Law”  Critical legal scholars similarly attacked economic analysis of law
o Challenge the assumptions of realists that this style of on the grounds that it mistakenly treats individual economic
jurisprudence was necessarily more democratic than a preferences as independent of legal rules.
jurisprudence of natural rights o Resources cannot be distributed on the basis of
 Gordon: Questioned the possibility of explaining doctrinal calculations of allocative efficiency because such
change in terms of elite interests, when legal doctrine and legal calculations always depend on prior assumptions about
thought are partly constitutive of those interests. the distribution of resources.
 Kennedy: Complicated notion of doctrinal change by presenting o Questions of allocative efficiency can never be
liberal legal doctrine as a contradictory framework embracing separated from questions of distributive justice.
positivism and natural rights, instrumentalism and formalism.  Critical scholars also objected to scholarship invoking political
 Katz: The concept of interest disguises but does not resolve the science in an effort to reconcile adjudication with majoritarian
tension between “natural rights” and “popular sovereignty” in decision making.
liberal jurisprudence. o By treating voter preferences as given, such scholarship
 Most such scholarship explores 3 models of social choice: is able to treat the problem of democratic decision
(1) the adversary process, (2) the electoral process, and (3) making as a matter of aggregating those preferences,
the market. without exploring how they arrived at.

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  Parker: Argued that even a judicially supervised electoral 2. Simon’s “Legality, Bureaucracy. And Class in a Welfare
process cannot represent the “interest” of the poor because System” and Bell’s “Serving Two Masters”
poverty precludes people from formulating and pursuing their o Directed critical attention at the strategic decisions
own political goals. made by liberal reformist lawyers on the basis of
distorting assumptions about their client groups’
The critique of instrumental reformism interests.
 Critical scholars’ anti-instrumentalism is aimed not only against  The lawyers were criticized not so much for
these institutions, but also against liberal reform designed to interfering with a situation better left alone
improved them. but for allowing abstract conceptions of their
 Criticism of liberal reform movements clients’ interests to bind them to their clients’
1. Freeman’s “Legitimizing Racial Discrimination through potential to contribute to the process of
Anti-discrimination Law” and Klare’s “Judicial social change.
Deradicalization of the Wagner Act” o What lawyers failed to consider was the impact of
o Criticized decisional law (antidiscrimination law) and bureaucratization on welfare workers and on the
legislation (the National Labor Relations Act) future possibilities for welfare recipients to influence
 Criticized these products of progressive those workers.
politics as ineffectual because, while they  Removing the discretion of welfare workers
made minor adjustments to provide the degraded their work and destroyed
appearance of protection for persons of opportunities for arbitrariness,
color and working people, these legal condescension, and discrimination.
changes, in practice, left the decision-  Critical legal studies drew criticism from the left, and especially
making institution of the market intact. from minority scholars for slighting the value of rights as a
o What they lamented was the exhaustion of such rhetoric for mobilizing subordinated groups to sustain
political movements as a result of their embodiment commitment to a struggle in the face of personal hardship and
in institutions, specifically in adjustments to the political defeat.
ground rules for bargaining within the market.
 These movements did not fail because they The critique of revolutionary instrumentalism
accepted the institution of the market; to the  Critical legal scholars expressed misgivings about the
contrary, they challenged the institution of ambitiously radical programs for social change as well as liberal
the market by embodying a form of reformist programs.
association and decision-making o Revolutionary programs were at least as undemocratic
inconsistent with it. and misguided as the movements for liberal reform.
 Movements were contained by the market,  Baker’s “The Process of Change and Liberty Theory of the
however, when their struggles were First Amendment”
embodied in legal institutions. o Instrumentalism as the separation of means and ends
o They did not urge contempt for the labor and civil  Distinction is artificial and cannot be maintained
rights movements as irrelevant because they did not o Attacked the notion that the end of progressive social
pursue world revolution against capitalism. But change justified violent or coercive means
rather, they celebrated these movements as forms of o Argued that even the radical change to a collectivist or
association and decision-making that were, in and of communal requires strict protection of individual freedom
themselves, good and sufficient alternatives to of opinion
instrumentalism.

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 Unger: Argued that the Marxist theory of revolution was  The indeterminacy of interests render the Marxist
undermined by reliance on the same kind of instrumental conception of revolution incoherent.
reasoning that informs mainstream policy analysis
o Marx’s notion of ‘revolution’’  Change from one mode Conclusion
of production to another  The indeterminacy of interests undermines the instrumental
o Marx’s concept of capitalist economy: conception of society that has informed much of policy analysis
a. Predominance of “free labor” (condition which a across the political spectrum.
labourer owns all of her own labor and none of the  Although the indeterminacy criticique of liberal rights theory
means of production); generated more attention and controversy, the indeterminacy
b. Commodity production for private accumulation of critique of instrumentalism was critical legal studies more original
wealth; and and significant philosophical claim.
c. Sufficient accumulation of wealth to enable
industrialization.
 Unger pointed out that there is no necessary connection
between commodity production and the development of a labor
market, or between labor market and industrialization, or
between industrialization and private accumulation.
 Marx would have denied that his conception of economic
necessity was based on any notion of desire.
o For Marx, economic life consisted in production rather
than consumption, and the value of products was a
function of labor rather than consumer demand.
 Yet the “necessity” of “free labor” to industrialization depends on
culturally contingent “consumer” preferences. Unless then we
specify “consumer” preferences of laborers and employers for
different labor relations, we cannot conclude that a market in free
labor will allocate work more efficiently than a market in bound
labor.
 Coase: Absent transaction costs, allocative efficiency does not
depend on the distribution of entitlements.
 Steinfeld: Indentured servitude ceased to be a profitable way to
employ labor when workers would notlonger stad for it, and
courts became less willing to enforce it.
 What bound ‘free’ wage labor to the service of industrialization
and accumulation to form ‘capitalism’ was culture.
o This means that capitalism can never be separated from
the “superstructure” it is supposed to explain.
o It also means, according to Unger, that there is no
necessary connection among any of the defining
elements of a mode of production, and no necessary
incompatibility between what are supposed to be
elements of different modes of production.

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E. DE TORRE’S “THE ROOTS OF INTERNATIONA LAW AND THE after by absolute rulers who were convinced that power comes
TEACHINGS OF FRANCISCO DE VITORIA AS A FOUNDATION FOR from wealth, and wealth from land. Such leads were always
TRANSCENDENT HUMAN RIGHTS AND GLOBAL PEACE” looking for casus belli with adjacent nations, by land or sea,
 “[H]umanity is facing a crucial challenge x x x If it does not bringing a booty of land and slaves with every new conquest. So
succeed in giving itself truly effective institutions to eliminate the this cycle continued, with more tyranny, torture, disease, poverty,
scourge of war, the risk exists that the law of force will prevail and ignorance."
over the force of law.” (Vatican Press Office)
o Peace “is not simply the absence of war, nor can it be The Rise and Effect of Religious Militarism
reduced only to make the balance of litigant forces  The noble profession of defending one's country, the military
stable, nor is it the effect of a despotic domination, profession, degenerated into militarism.
rather, it defines itself with all precision as a ‘work of o Result of the glorification of the warrior in ancient
justice.” philosophies, and the terrifying escalation of war
technology that casts doubts on the validity of the
I. The Predicament of the Past principle of self-defense.
 A spiral of wars throughout the centuries, activated by  It was this chronic state of affairs that provided
selfishness, greed, envy, pride, and economic fallacies, and duly the occasion for nations to turn to polytheism
rationalized by nationalism, imperialism, racism, and other and idolatry in search of supernatural beings
pseudo-religious degenerations, had finally crystallized in the (the more the better), who could assist them in
Marxist class struggle. their struggle against other nations.
o Struggle  Confluence of Machiavellianism (“the end  The manipulation of religion for selfish purposes made it an
justifies the means”), Hegelianism (“the soldier is the accomplice of war rather than of peace.
universal man”), and Darwin (“the survival of the  Judaism, Christianity, and Islam have sustained the original
strongest in the struggle for life”) monotheism of mankind (as evidenced by modern
 In order to restore the balance between 2 vicious extremes, anthropological research on primitive peoples).
militarism and pacifism, the best approach is to focus our o Followers of these three religions, though, also fell victim
metaphysical and empirical eye on the concept of peace. at times to a fanaticism that led them into war against
 History shows that at all times and in all nations there has been a each other, and even against members of their own
continuous state of war. Peace seems to have been the faith.
exception, and war the rule—a fact philosophers have utilized in  Fanaticism (not to be confused tout court with
their reasoning. fundamentalism or radicalism) does not distinguish
o Romans: History is always the “teacher of life” between the person and the idea, resulting in hatred and
o Leibniz: “Everything in the universe is so connected that violence.
the present contains the future in its bosom.”  The religious groups were each to be kept in its own territory
o Hobbes: “The natural state of society as ‘war of all (cuius regio eius religio), and in the meantime, pure
against all’ and that a state of nature in which life is “philosophers,” not theologians, were to engage in a dialogue in
‘solitary, poor, nasty, brutish, and short’” search of peace: the pax philosophica.
o Plautus: “Homo homini lupus” (man is a wolf to man)  This philosophical approach stemmed from a radical skepticism
o Han Fei Tzû: Declared that since man is evil by nature, regarding the failure of the aforementioned religions to attain
only brute force can restrain the masses peace, and their tendency towards a fanaticism which led to war.
 “This interchange of ideas concerning humanity's intrinsic evil
and good is a swinging pendulum, from oppression to anarchy
and back. Still, mankind suffered tyranny, torture, disease,
poverty, and ignorance. War raged, fomented, and was sought
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II. Hope for the Future God, though, and not man, is the source of this freedom and
creativity.
“These efforts in the past ended in failure precisely because the means  Hence, the fundamental right to religious freedom must include
employed were violent. This is revealed by common sense and openness to a transcendent, personal Creator.
dispassionate reason. If violence is used to stop violence, it will, as a o This is what the Pope often refers to as freedom of
rule, generate more violence. If you want to achieve peace, the first thought and of conscience, not to be confused with the
thing that must be done is to abstain from violence. The principle of false autonomy of a human reason that is not ruled by
answering force with force in self-defense may at times be stretched to truth, but by its own subjective preference.
conceal other selfish motives. If we can agree on the importance of  True freedom consists not in boundless omnipotence, but in the
banning violence from civilized society, as distinct from the power to choose without external coercion. This freedom must
Hobbesian jungle, then we can start a serene dialogue, a reasoned be balanced by justice, even as rights must be balanced by
negotiation, in cooperation and solidarity. duties. To the extent that this balance is achieved, there will first
be economic prosperity, followed by cultural prosperity, and
This dialogue must be based on the “truth about man.” The dignity finally, the total development of man in a society at peace.
of the human person is rooted in his or her transcendence, or  Although freedom is indispensable for peace, it is not alone
capacity for self-surpassing through knowledge and love. This sufficient. It unleashes man's creativity, but also his
capacity is attested by the history of ideas, science, technology, political selfishness.
institutions, economic enterprise, poetry, and the fine arts, and makes  Western materialism is notoriously rampant with hedonism and
the human person a subject of rights. These “human rights” are at the consumerism.
very core of human essence, and thereby of human existence. o This is not the direct effect of the capitalist and
These rights are not conferred by society, the State, or any other democratic systems, but it often accompanies them.
human agency, but are God-given: permanent and inalienable. No Freedom naturally entails the risk of misuse, but it is a
secularistic humanity can be their bedrock. This is the supra-political risk that must be taken for man to achieve the common
“natural law” that must be recognized by and reflected in every man- good.
made constitution or legislation. The recognition of this “truth about  It cannot be denied that man does much evil if he is left free, but
man” at a metaphysical, ethical, and scientific level, is the only he also does much good if he is educated in the use of his
possible platform for a dialogue toward peace.” freedom. Man is neither an angel nor a devil, though surely at
times he may have borne a resemblance to either. Moreover, he
The inseparable link between peace and human rights is not a freedom-less animal nor a lifeless machine. The Bible
 Pope John Paul II emphasized that this truth is a common has revealed that man is free in his boundless love, but still
patrimony of mankind; it is a philosophical, metaphysical, ethical, bound to the truth that liberates.
and natural truth. o Our ability to overcome our evil tendencies lies in truth
o It is not the exclusive concern of any particular religion, and openness to He who is Truth, God. That is our
but the common possession of all religions open to the dignity, and we must respect its development in each of
transcendence of God. us from the moment of conception. We must trust in our
 This papal discourse directly combated the core of Marxist capacity to overcome all evils with the aid of God, with
ideology: the suppression of individual personal freedom and the solidarity, and in cooperation with one another.
total absorption of man into the community. For this reason,
Marxism is unable to recognize the transcendence of the human III. Recent Attempts to Promote an Institution of Peace
person.  Francisco de Vitoria as its precursor and the Father of
 According to Pope John Paul II, [o]f all of man's freedoms, that International Law
which is most fundamental and the root of his greatness and o Rooted in that of St. Thomas Aquinas and has been
dignity is his orientation toward infinity and boundless creativity. affirmed by all popes since Paul III
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 Vitoria's emphasis on human rights as the condition for peace o This is a philosophical basis that can be accepted by all
and order was partially reflected in the American Declaration of religions and cultures for an “international law” that
Independence, which recognized rights derived from God. strives to defend and preserve global peace.
 The French Constitution, framed shortly thereafter, failed to o It is not the secularist pax philosophica of the
include a derivation of rights from God, thus initiating modern Enlightenment, but a truth acceptable to and supported
secularism which provides no basis for human rights except by all religions. It is manifested in fundamental ethical
positive human law. values rooted in the dignity of the human person and
o Hence, all are at the mercy of whoever has more power. spelled out in the universally accepted list of human
“Might is right” under legal positivism. rights.
 The first truly international attempt to institutionalize the ideas of  The equality of human nature also creates a “universal
de Vitoria, and thus surpass the era of mere pacts or treaties brotherhood” of mankind; not a secularist brotherhood, but one
between individual nations (which only led to further wars under God.
between blocs of nations) came with the League of Nations, o The obvious existing inequalities among human beings
founded in Geneva shortly after the First World War. and communities are not supposed to be antagonistic,
 This dismal effort had lasted barely 20 twenty years when the adversarial, or even “dialectical” in the Hegelian-Marxist
Second World War heralded its end. Nevertheless, hope was not sense, but complementary and harmonizable.
extinguished, and the United Nations was founded after World o What inequality of individual persons there is must be
War II as a reaction to that most terrible of all wars. understood in light of the underlying unity of all mankind,
 It was begun with the firm determination to promote peace as the Confucian tradition has also maintained.
everywhere on earth by peaceful and democratic means. In so  Cooperation and solidarity are a natural extension of this unity.
doing, it promulgated a comprehensive Universal Declaration of These should not be confused with the “pacifism” of “peace at all
Human Rights as a juridical guarantee of peace. costs,” or the “irenecism” (from the Greek Irene meaning
o The old formula “if you want peace, prepare for war” was “peace”) of compromise at the expense of truth.
replaced by a new one: “if you want peace, respect  In fact, the sacredness of truth carries a moral obligation to
human rights.” sacrifice one's life in its defense. For a Christian, the paradox of
 The UN has proven to be far from perfect, but it Christ, that He came not to bring peace on earth, but war, cannot
is doubtless a giant step in the right direction, be brushed aside. He clarified this, however, by explaining that
and has never lacked the encouragement and the “war” to be waged was not against others but against
support of the popes (from Pius XII to the oneself.
present one). o Only in this way can the peace of Christ be offered to
 He stated that the way to build and secure “peace on earth” is to others, by channeling all of our aggressiveness toward
respect the human rights grounded in the “dignity of the human ourselves in the struggle against selfishness. Without
person,” and proceeded, in the tradition of Francisco de Vitoria, this, we cannot prevent ourselves from being aggressive
to enumerate one of the most comprehensive lists of human with others.
rights ever put forward.  This humanism that is open to transcendence, not secularism,
o This list begins with the right to life of the unborn, the includes the universal equality of all persons and peoples, and is
most defenseless and vulnerable of human beings. therefore opposed to any form of racism or chauvinism.
 Paul VI enriched this concept in Populorum Progressio with the  It is in accord with this universal equality/humanism that the
idea that development is the new name for peace, with Catholic Church is one of the most consistent and adamant
“development” defined as the total promotion of man based on opponents of racism. In countries deeply affected by the Catholic
an “integral humanism.” ethos, racism is, as a rule, less frequent. No other institution has
more strongly condemned the evils and errors, both

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 philosophical and scientific, of racism. On the other hand, no o He spelled out the inviolable rights to life, to liberty, and
other institution has more highly praised the virtue of patriotism. to self-rule, including the right to private economic
o The Catholic Church, as the name “catholic” means, is initiative and to participation in public life.
universal in outlook, while at the same time deeply  Francisco de Vitoria's writings  the first virtually complete
involved in the reality of actual peoples and enumeration of human rights and the principles of democratic
communities. government and law, both on a national and on an international
 The advent of Christianity, with its radical natural law affirmation level (long before the American Declaration of Independence
of the fundamental equality and dignity of all men, fermented and Thomas Paine's The Rights of Man)
social change in a Roman Empire which had fully established  It was Vitoria, therefore, who set in motion the “revolution of
and legalized the institution of slavery, just as the Greek city- human rights,” which has crystallized in modern democracies
states had done. and contemporary international organizations.
 The institution of slavery was largely based on the economic o His doctrine on the fundamental equality of all persons
fallacy, espoused by Aristotle, that natural resources (soil and and peoples, and on their right to self-rule, rooted in their
sub-soil) and forced labor (slavery) were the sole sources of national subjectivity, was based on a Christian theology
wealth. that illuminated the natural law witnessed to by human
o This way of thinking made war an economic necessity as reason, and most thoroughly analyzed by St. Thomas
well; wars were needed for the conquest of new lands Aquinas.
and the enslavement of peoples. o Vitoria's philosophy focused on the human person and
 It also made mercantilism and a static economy human society; therefore, it can be called a “philosophy
the prevailing doctrines, allied to the absolutism of order” in which authority and law (a rational ordering,
of rulers and the endemic recurrence of i.e., one not arbitrary or voluntaristic) are the basis and
tyrannies, together with the chronic poverty and justification for the power to govern.
squalor of the majority of the population. o This power is bestowed on the rulers by the people, but
o The cultural, economic, political, yet peaceful revolution not by the people as “numbers,” a fact Jacques Maritain
of Christianity was not able to flourish initially due to and Yves R. Simon have explained so well.
universal  Rather, it is bestowed by the people as a
o acceptance of the Aristotelian fallacy. Christianity community of persons aware of their subjective
commenced a process of cultural transformation, responsibility and dignity as beings open to
gradually humanizing slavery, war, poverty, disease, and infinite transcendence and objective values. This
political absolutism, by favoring the introduction of philosophy of order, based on the natural law,
practices and laws to this effect. was continued by a long chain of theologians
o In this endeavor, it always defended and protected the and philosophers.
dignity of man and his labor. After the European  The genesis of much of this human rights thinking had been in
colonization of the Americas, this new consciousness of those acclaimed lectures at Salamanca. There, Vitoria put the
universal equality and freedom fomented its own science dignity of the human person, regardless of race, culture, or
of economics at which timethere was no longer any religion, on center stage, together with the need for a juridical
excuse to maintain the aberrations that had been order to safeguard it.
tolerated for centuries. o He iterated what Aquinas had said many times: “No one
is a slave by nature.”
IV. The Work of Francisco de Vitoria o All men and women are equal by nature, in spite of their
 Vitoria courageously expounded the fundamental equality of all existential inequalities, and they can never lose their
human beings and acknowledged that the ultimate sovereignty of fundamental rights even if they fall into sin.
the people is given to them by God.
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 o Vitoria rejected the Roman ius belli and declared there to Montesquieu, Jefferson, and the American
be no such thing as a “right to war,” but rather only a Revolution).
right to self-defense. 2. To know himself and his own nature well. To
o He rebuffed the “divine right of kings” then claimed by acknowledge his dependence on God, his duties
absolutist monarchs, instead asserting the right of the toward Him and toward other men; to act with
people to depose tyrants when reasonable. prudence, equity and moderation. To use well what
o He rejected theocratic imperialism, advocating in its depends on us.
place a universal community of nations ruled by a 3. To seek one's esteem and honor. (In other words, to
natural law common to all cultures (an ius gentium or be aware of one's human dignity.)
“law of nations”) and delineated in a “declaration” of 4. To seek wealth with moderation. (This is a new way
human rights. of expressing Vitoria's right of all men to engage in
 For this reason, the United Nations considers business enterprise and acquire private property,
Vitoria its precursor, and international jurists always taking into account the common good, or
generally regard him as their “father.” “with moderation.”)
 Despite this, some authors have erroneously attributed the title 5. To subject the passions to reason. (That is to say, to
of “Father of International Law” to Hugo Grotius (1583-1645), be fully human in accord with natural law.)
born 37 years after Vitoria's death. 6. To exercise just self-defense. (As we have seen, he
o However, Grotius himself utilized Vitoria's thesis on just follows Vitoria in the application of this general duty
war, as found in Grotius's capital work De iure belli ac as a replacement for the “right to war.”)
pacis in 1625.  This natural law is God and liberty-centered in the tradition
o Following Vitoria's thought, Grotius also roots the natural of Francisco de Vitoria. It is a philosophy of order, and of
law on God as the author of human nature and natural ordered liberty. It is the cultural core of a republic (or a
sociability. This is notwithstanding his misunderstood constitutional monarchy) organically composed of free
remark that the natural law would be valid even if we persons under God, for the transcendent common good of
were to admit that God does not exist nor care about society.
human affairs.
 On the evidence of his writings, Grotius cannot be said to have “In contrast, the philosophy of power, of the self-affirmation of the
started the process that secularized the natural law tradition. individual and autonomous will, whether singly or collectively, found
o Neither can he be considered the “father” of international political expression in the French Revolution of 1789. In that
law. He followed Vitoria and further elaborated on his government's Declaration of the Rights of Man and the Citizen, Article VI,
philosophy. it is stated that “the law is an expression of the general will,” i.e., not a
 Other false claimants to the title of father of modern human rights “rational” ordering. This is what leads to the “democracy of tyranny”
rooted in the natural law tradition are Samuel Pufendorf (1632- described by Tocqueville. The God of the Deists and of the Jacobins is
1694) and his contemporary, John Locke. the Great Architect who has left the world “entirely” in the hands of man.
o Pufendorf most clearly shows his relation to the Vitoria Thus, deprived of a point of reference beyond and above themselves,
tradition in his enumeration of the “natural duties of men now turn to one another as wolves (Hobbes) and will try either to
man.” create a Leviathan, an absolute State to impose order on all, or to seek
1. As regards his soul, to know God as the Supreme power-mechanisms in a free-for-all society to secure the “survival of the
Being, Intelligent, Free, Ruler of the Universe, and fittest.” In this way, the “general will” of Rousseau was first claimed by
worship Him. (This is clearly not the Supreme Being the French Revolution, and later by Bolshevism, Fascism, and Nazism,
(the “Great Architect”) of the Deists and the French the collectivist or socialist forms of the philosophy of power. At the other
Revolution, but the Provident God of Locke, end of the secularist spectrum, utilitarian and pragmatic trends favored
its individualistic form. This has historically outlived the collectivist form
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and plunged humanity into the global crisis we are now experiencing in  Article 7: Whether all the booty taken in war
the awesome confrontation of a culture of life and a culture of death, a belongs to the captors.
philosophy of love and a philosophy of hate.”  Article 8: Whether one may impose tribute on a
defeated enemy.
 Article 9: Whether one may depose the enemy's
V. Vitoria on Laws of War princes and set up new ones.
 The Law of War is a continuation of the previous Praelectio “On o Conclusion: The rules of war summarized in 3 canons.
the American Indians” (De Indis). Vitoria expounded at length on
the previous war theory since the time of St. Augustine. In Conclusion
Scholastic fashion, he divided the discussion into questions and  Goaded by developments in the New World, Vitoria took great
articles. pains to lay down norms of international law.
o Question 1: o Those that followed his example, (beginning with
 Article 1: Whether it is lawful for Christians to Grotius) were prompted by the “Wars of Religion” and
wage war the escalation of imperialistic conflict, along with a desire
 Article 2: On what authority may war be declared for the realization of Vitoria's ideal: a community of
or waged. nations in pursuit of peace.
 Article 3: What are the persuasive reasons and o Their endeavors finally culminated in the formation of the
causes of just war? United Nations.
 Article 4: What and how much may be done in  However, the end envisioned still has not become a reality. A
the just war? “new world” is once again burgeoning, reshaping the
o Question 2: relationships of nations and their citizens.
 Article 1: Whether it is enough for the just war o This time it does not arise from the discoveries of
that the prince should believe that his cause is explorers, but of scientists. With many benefits there
just. also come many dangers. Technological advancement
 Article 2: Whether subjects are required to in warfare has presented new perils that have
examine the causes of war. complicated the just war issue. Even if inadvertent,
 Article 3: What is to be done when the justice of progress has increased the havoc of war, extending the
war is undecided? reach of dehumanising ideologies and their dreadful
 Article 4: War cannot be just on both sides. offspring: genocide. Coming to terms with the question
 Article 5: If a belligerent discovers that his cause of just warfare today requires a mature reconsideration
is unjust, must he make restitution? of its underlying principles and goals in light of the
o Question 3: modern situation.
 Article 1: Whether one may kill innocent people  This is not to advocate yielding to a relativistic,
in a just war. or purely pragmatic ethic. Moral principles and
 Article 2: Whether one may plunder innocent guidelines are like human rights, universally
people in ajust war. valid and inherent to human nature.
 Article 3: Whether one may enslave the innocent  One such unchanging guideline is that the
in a just war. formation of conscience requires consideration
 Article 4: Whether one may execute hostages. of the formal object or end of the moral act, the
 Article 5: Whether one may execute all the intention of the agent, and the circumstances.
enemy combatants.  These are the rules of jurisprudence, and they govern the
 Article 6: Whether one may execute those who application of the law to practical judgements, including the ius
have surrendered or been taken prisoner. ad bellum and ius in bello. With the proliferation of weapons of
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 mass destruction, the “circumstances” have become the most
relevant factor in that analysis. The “circumstances” of any war
have the potential to be broader in their effect than at any time in
the past and any just war analysis must pay heed to them in an
international light. This insight motivated the emphasis placed by
the Holy Father on international law, the need to strengthen the
United Nations, and the role of international diplomacy.
 To achieve these goals, an in-depth study of the concept of
law must be undertaken with a thorough knowledge of
history.
o This is a central theme of Vitoria's thought. The analysis
of moral principles should not be undertaken blindly and
without reference to the past anymore than technological
study should ignore prior contributions.
o A historically blind approach not only fails to capitalize
on the achievements of the past, it also forgoes the best
defense against the repetition of error. Prudently
approaching the question of just war requires the
exercise of memory, circumspection, and foresight. Even
with all three no one can forecast the future, but an
understanding of the past fosters the conditions that
provide grounds for hope.

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