JANETTE J.

CAFUGAUAN I-B
LEGAL PHILOSOPHY
ATTY. JULIUS M. CONCEPCION

Theory Tenets Objectives Response Response to the Response

-Philosophy of law (or legal philosophy) is -To establish answers on
A. LEGAL concerned with providing a general philosophical the issues in the field
PHILOSOPHY analysis of law and legal institutions. ranging from abstract
conceptual questions about
the nature of law and legal
systems to normative
-The philosophy of law belongs to the philosophy of questions about the
practical reason. The philosophy of practical reason relationship between law
seeks to make reasonable the deliberations and and morality and the
choices by which human persons shape their freely justification for various
chosen actions and thus shape also themselves and legal institutions.
their communities.
- To keep clear its intrinsic
-philosophy of law is interested in the general relationship with, and
question: What is Law? dependence upon, all the
This general question about the nature of law truths of moral and political
presupposes that law is a unique social-political philosophy, not least by
phenomenon, with more or less universal providing a constant
characteristics that can be discerned through critique of every form of
philosophical analysis. legal philosophy that denies
or distorts that relationship.

-to criticize and expose

every manipulation of it for
purposes destructive of the
common good, a good that
includes but is not
exhausted by the upholding
of juridically cognizable
rights.
 1. Analytic -involves providing an analysis of the essence of law -to provide an account of a. Brian Leiter (1998) points out,
Jurisprudence so as to understand what differentiates it from what distinguishes law as a philosophy of law is one of the few
(Conceptual other systems of norms, such as ethics. system of norms from other philosophical disciplines that takes
Jurisprudence) systems of norms, such as conceptual analysis as its principal
ethical norms. concern; most other areas in philosophy
- seeks "the essence or have taken a naturalistic turn,
nature which is common to incorporating the tools and methods of
all laws that are properly so the sciences.
called"
a. natural subscribe to the Overlap Thesis, which is that there -to provide necessary and
law theory is a necessary relation between the concepts of law sufficient conditions for the
and morality. existence of law that
- According to this view, then, the concept of law distinguish law from non-
cannot be fully articulated without some reference law.
to moral notions.

b. legal - constituted by three theoretical commitments: (i)

positivism the Social Fact Thesis,
ii) the Conventionality Thesis, and (iii) the
Separability Thesis.
Hart distinguishes two perspectives from -Brian Bix (1995) distinguishes a
c. Ronald - Dworkin’s view is often characterized as a third which a set of legal practices can be number of different purposes that
Dworkin's theory partly because it is not clear where he stands understood. A legal practice can be can be served by conceptual
Third Theory on the question of whether there is a conceptual understood from the "internal" point of claims: (1) to track linguistic
relation between law and morality. view of the person who accepts that usage; (2) to stipulate meanings;
-rejects positivism's Social Fact Thesis on the ground practice as providing legitimate guides to (3) to explain what is important or
that there are some legal standards the authority of conduct, as well as from the "external" essential about a class of objects;
which cannot be explained in terms of social facts. In point of view of the observer who wishes and (4) to establish an evaluative
deciding hard cases, for example, judges often to understand the practice but does not test for the concept-word
invoke moral principles that Dworkin believes do not accept it as being authoritative or
derive their legal authority from the social criteria of legitimate.
legality contained in a rule of recognition. Hart understands his theory of law to be
-Dworkin concludes, "if we treat principles as law we both descriptive and general in the sense
must reject the positivists' first tenet, that the law of that it provides an account of fundamental
a community is distinguished from other social features common to all legal systems-
standards by some test in the form of a master rule" which presupposes a point of view that is

2. Normative -involves the examination of normative, evaluative,
jurisprudence and otherwise prescriptive issues about the law,
such as restrictions on freedom, obligations to obey
the law, and the grounds for punishment.
- involves normative, evaluative, and otherwise
prescriptive questions about the law.
a. Freedom -Laws limit human autonomy by restricting
and the freedom. Criminal laws, for example, remove
Limits of certain behaviors from the range of behavioral
Legitimate options by penalizing them with imprisonment and,
Law in some cases, death. Likewise, civil laws require
people to take certain precautions not to injure
others and to honor their contracts.
i. Legal -the view that the law can legitimately be used to
moralism prohibit behaviors that conflict with society's
collective moral judgments even when those
behaviors do not result in physical or psychological
harm to others.
To examine three key
issues: (a) when and to
what extent laws can
restrict the freedom of
citizens,
(b) the nature of one's
obligation to obey the law,
and
(c) the justification of
punishment by law.
external to all legal systems. For this
reason, he regards his project as "a
radically different enterprise from
Dworkin's conception of legal theory (or
'jurisprudence' as he often terms it) as in
part evaluative and justificatory and as
'addressed to a particular legal culture',
which is usually the theorist's own and in
Dworkin's case is that of Anglo-American
law"
John Stuart Mill provides the classic
liberal answer in the form of the harm
principle:
[T]he sole end for which mankind are
warranted, individually or collectively, in
interfering with the liberty of action of
any of their number is self-protection.
The only purpose for which power can
rightfully be exercised over any member
of a civilized community against his will is
to prevent harm to others. His own good,
either physical or moral, is not a sufficient
warrant. Over himself, over his own body
and mind, the individual is sovereign
Patrick Devlin: shared morality (i.e.
fundamental agreement about good and
evil) is essential to the existence of a

ii. Legal -the view is that it is permissible for the state to
paternalism legislate against what Mill calls "self-regarding
actions" when necessary to prevent individuals
from inflicting physical or severe emotional harm
on themselves.
Limits to legitimate paternalism
1. The state must show that the behavior governed
by the proposed restriction involves the sort of
harm that a rational person would want to avoid;
2. On the calculations of a fully rational person, the
potential harm outweighs the benefits of the
relevant behavior; and
3. The proposed restriction is the least restrictive
alternative for protecting against the harm
iii.The - "It is always a good reason in support of a
Offense proposed criminal prohibition that it would
Principle probably be an effective way of preventing serious
offense (as opposed to injury or harm) to persons
other than the actor, and that it is probably a
necessary means to that end" (Feinberg 1985)
-subjective element consists in the experience of an
unpleasant mental state (for example, shame,
disgust, anxiety, embarrassment);
society; for a society is held by the - Hart argues that while
invisible bonds of common thought (not enforcement of certain norms
physical). If the bonds are too relaxed, protecting life, safety and
the members would drift apart. This property are likely essential to a
bondage is the price of society, and society’s existence, it can survive a
mankind needs society, thus the law can diversity of behavior in other
be used to preserve the shared morality areas of moral concern (e.g.
as a means of preserving society itself. sexual morality = controversies re:
abortion and homosexuality)
Gerald Dworkin describes it, a paternalist
interference is an "interference with a
person's liberty of action justified by
reasons referring exclusively to the
welfare, good, happiness, needs,
interests or values of the person being
coerced"
- Dworkin argues that there are limits to
legitimate paternalism: (1) the state must
show that the behavior governed by the
proposed restriction involves the sort of
harm that a rational person would want
to avoid; (2) on the calculations of a fully
rational person, the potential harm
outweighs the benefits of the relevant
behavior; and (3) the proposed restriction
is the least restrictive alternative for
protecting against the harm.
 -objective element consists in the existence of a
wrongful cause of such a mental state.
b. The -if what is essential to law is just that there exist
Obligation to specified recipes for making law, then there cannot
Obey Law be a moral obligation to obey a rule simply because
it is the law.
-1. Arguments from gratitude: all persons derive
some benefit from the state’s enforcement of the
law, thereby incurring a duty of gratitude which can
be discharged by obeying its laws;
However, since the citizens are not given a choice
(or whether a person wants them) with respect to
such benefits, the mere enjoyment of them cannot
give rise to a duty of gratitude
2. Arguments from fair play = in societies where
there is a mutually beneficial and just scheme of
social cooperation, there is a moral obligation to
obey law qua law because of a duty of fair play
Fairness requires obedience of persons who
intentionally accept the benefits made available
3. Arguments from implied consent – an obligation
to obey law on some sort of implied or inferred
promise/consent to obey the law in the form of
continued residence and acceptance of benefits
from the state.
4. Arguments from general utility – the
consequences of universal/general disobedience
would be catastrophic, thus it is wrong for any
individual to disobey the law, for if any person may
disobey then everyone may do so
Leads to absurdities (e.g. obligation not to eat at
5PM bec. certain essential services could not be
maintained)
- the duty to obey the law in the
consequences of universal disobedience.
Since, according to this argument, the
consequences of general disobedience
would be catastrophic, it is wrong for any
individual to disobey the law; for no
person may disobey the law unless
everyone may do so
-Contemporary positivists argue that the
mere status of a norm as law cannot give
rise to any moral obligation to obey that
norm.
-John Rawls (1964) argues that there is a
moral obligation to obey law qua law in
societies in which there is a mutually
beneficial and just scheme of social
cooperation. What gives rise to a moral
obligation to obey law qua law in such
societies is a duty of fair play: fairness
requires obedience of persons who
intentionally accept the benefits made
available in a society organized around a
just scheme of mutually beneficial
cooperation.
- In response, Smith points out
that this strategy of argument
leads to absurdities: "We will have
to maintain, for example, that
there is a prima facie obligation
not to eat dinner at five o'clock,
for if everyone did so, certain
essential services could not be
maintained"
-Rawls's argument does not
establish the existence of a
content-independent obligation to
obey law; the obligation arises
only in those societies that
institutionalize a just scheme of
social cooperation.
- The argument from consent
grounds an obligation to obey law
on some sort of implied promise.
As is readily evident, we can
voluntarily assume obligations by
consenting to them or making a
promise.
 c. -Punishment is unique among putatively legitimate
Justification acts in that its point is to inflict discomfort on the
of recipient; an act that is incapable of causing a
Punishment person minimal discomfort cannot be characterized
as a punishment.
5 forms of justifications for punishment
1. Retributive (payback; retaliation; return for
something done/suffered/given)
- what justifies punishing a person is that she
committed an offense that deserves punishment; to
suffer in proportion to the magnitude of the
wrongdoing
Problem: the fact that someone deserves
punishment does not imply that it is morally
permissible for the state to administer punishment
2. Deterrence (to cause possible offenders to
decide against wrongdoing)
deters wrongdoing by persons who would
otherwise commit wrongful acts
Problem: inconsistent with the Kantian principle
that it is wrong to use people as mere means; that
is, to deliberately inflict discomfort on one person
because it may have beneficial effects on the
behavior of other persons
3. Preventive (to stop something from happening)
- justified insofar as it prevents the offender from
committing wrongful acts against society during the
period of incarceration
Problem: may be achieved without the deliberate
infliction of discomfort that constitute punishment
(e.g. detention may be pleasant)
4. Rehabilitative
- justified in virtue of the effect it has on the moral
character of the offender
- same problem with preventive
5. Restitutionary (return of something to the
 owner/person entitled to it)
- focuses on the effect of the offender’s wrongful
act on the victim
- not that the offender deserves to suffer, but that
the offended party desires compensation in
proportion to the loss
Problem: fails to distinguish between compensation
and punishment, the former focuses on the victim
while the latter focuses on the offender
3. Critical theories of law
judicial decision is guided far more frequently by To respond to legal realist acknowledges that law is the idea that law is essentially the
a. Legal political and moral intuitions about the facts of the formalism, a particular essentially the product of official activity, product of official activity
Realism case (instead of by legal rules) than theories like model of legal reasoning but believes that judicial lawmaking presupposes the truth of
positivism and naturalism acknowledge. that assimilates legal occurs more frequently than is commonly positivism's Conventionality,
reasoning to syllogistic assumed. Social Fact, and Separability
reasoning. theses.
 b. Critical CLS theorists emphasize the role of ideology in attempts to expand the The province of judges is to interpret, and If law is radically indeterminate,
Legal Studies shaping the content of the law. radical aspects of legal not make, the law. For, on this view, then judges nearly always decide
- On this view, the content of the law in liberal realism into a Marxist democratic ideals imply that lawmaking cases by making new law, which is
democracies necessarily reflects "ideological critique of mainstream must be left to legislators who, unlike inconsistent with liberal
struggles among social factions in which competing liberal jurisprudence. appointed judges, are accountable to the conceptions of the legitimate
conceptions of justice, goodness, and social and electorate. sources of lawmaking authority.
political life get compromised, truncated, vitiated,
and adjusted"
c. Law and The value of economic analysis in the law is both a Posner subscribes to the so-called
Economics description about how courts and legislators do efficiency theory of the common law,
behave and a prescription for how such officials according to which "the common law is
should behave. best (not perfectly) explained as a system
for maximizing the wealth of society"
- law should strive to maximize wealth.
d. Outsider "outsider jurisprudence" is concerned with a. feminist jurisprudence-
Jurisprudence providing an analysis of the ways in which law is objective is to show how
structured to promote the interests of white males patriarchal assumptions
and to exclude females and persons of color. have shaped the content of
laws in a wide variety of
a. feminist jurisprudence areas: property, contract,
criminal law, constitutional
b. Critical race theory - law, and the law of civil
rights.
b. Critical race theory -
objective is to point up the
way in which assumptions
of white supremacy have
shaped the content of the
- philosophical inquiry about the nature of law is law at the expense of
(IEP) meant to be universal. It assumes that law persons of color.
1.. General possesses certain features, and it possesses them - to show how assumptions
Jurisprudence by its very nature, or essence, as law, whenever and about race are built into
wherever it happens to exist most liberal theories of law.
According to natural law moral theory, the moral - seeks both to give an -unjust laws are all-too- frequently Brian Bix (1999) points out, the
standards that govern human behavior are, in some account of the facticity of enforced against persons. argument does little work for
law and to answer Austin because it is always
 B. sense, objectively derived from the nature of
NATURAL human beings and the nature of the world.
LAW Aquinas is clear and explicit that in this context,
“natural” is predicated of something (say, a law, or a
virtue) only when and because that of which it is
predicated is in line with reason, practical reason, or
practical reason's requirements ,” as in “the law of
reason” or “the requirements of reason.”
questions that remain
central to understanding
law.
These questions are :
What kinds of things could
possibly count as merits of
law? What role should law
play in adjudication? What
claim has law on our
obedience? What laws
should we have? And
should we have law at all?
- Austin points out that: to say that
human laws which conflict with the
Divine law are not binding, that is to say,
are not laws, is to talk stark nonsense.
The most pernicious laws, and therefore
those which are most opposed to the will
of God, have been and are continually
enforced as laws by judicial tribunals.
- conceptual naturalism undermines the
possibility of moral criticism of the law;
inasmuch as conformity with natural law
is a necessary condition for legal validity,
all valid law is, by definition, morally just.
Thus, on this line of reasoning, the legal
validity of a norm necessarily entails its
moral justice.
possible for a court to enforce a
law against a person that does not
satisfy Austin's own theory of
legal validity.
- conceptual naturalism does not
foreclose criticism of those norms
that are being enforced by a
society as law.
- Conceptual jurisprudence
assumes the existence of a core of
social practices (constituting law)
that requires a conceptual
explanation.
A conceptual theory of law can
legitimately be criticized for its
failure to adequately account for
the pre-existing data, as it were;
but it cannot legitimately be
criticized for either its normative
quality or its practical
implications.
 Classical -focuses on the overlap between natural law moral -Bix rejects the interpretation of Aquinas
naturalism and legal theories. and Blackstone as conceptual naturalists,
theory - Overlap Thesis, which is that there is a necessary arguing instead that the claim that an
of Thomas relation between the concepts of law and morality. unjust law is not a law should not be
Aquinas - asserts that there is some kind of non- taken literally.
conventional relation between law and morality.
Aquinas distinguishes four kinds of law: (1) eternal
law; (2) natural law; (3) human law; and (4) divine
law.-
Classical -The thesis is that a norm that does not conform to
Naturalism the natural law cannot be legally valid
or -articulates the two claims that constitute the
Conceptual theoretical core of conceptual naturalism: 1) there
Naturalism can be no legally valid standards that conflict with
by William the natural law; and 2) all valid laws derive what
Blackstone force and authority they have from the natural law.
Neo- -both an ethical theory and a theory of law.
naturalism - the classical naturalists were not concerned with
of John giving a conceptual account of legal validity; rather
Finnis they were concerned with explaining the moral
force of law: "the principles of natural law explain
the obligatory force (in the fullest sense of
'obligation') of positive laws, even when those laws
cannot be deduced from those principles"
- an unjust law can be legally valid, but it cannot
provide an adequate justification for use of the
state coercive power and is hence not obligatory in
the fullest sense; thus, an unjust law fails to realize
the moral ideals implicit in the concept of law. An
unjust law, on this view, is legally binding, but is not
fully law.
Procedural - law is the enterprise of subjecting human conduct
Naturalism to the governance of rules. This view treats law as
of Lon L. an activity and regards a legal system as the
Fuller product of a sustained purposive effort
- law is necessarily subject to a procedural morality.
-rejects the conceptual naturalist idea that there
are necessary substantive moral constraints on the
content of law.
-On Fuller's view, human activity is necessarily goal-
oriented or purposive in the sense that people
engage in a particular activity because it helps them
to achieve some end.
The Morality Law is subject to an internal morality consisting of
of Law by eight principles:
Lon fuller P1) the rules must be expressed in general terms;
(P2) the rules must be publicly promulgated;
(P3) the rules must be (for the most part)
prospective in effect;
(P4) the rules must be expressed in understandable
terms;
(P5) the rules must be consistent with one another;
(P6) the rules must not require conduct beyond the
powers of the affected parties;
(P7) the rules must not be changed so frequently
that the subject cannot rely on them; and
(P8) the rules must be administered in a manner
consistent with their wording
-to achieve social order is to
be guided and follow the 8
principles of legality.
-A total failure in any one of
these eight directions does
not simply result in a bad
system of law; it results in
something that is not
properly called a legal
system at all"
H.L.A. Hart, denies Fuller's claim that the
principles of legality constitute an
internal morality; according to Hart,
Fuller confuses the notions of morality
and efficacy
- Hart concedes that something like
Fuller's eight principles are built into the
existence conditions for law, he
concludes they do not constitute a
conceptual connection between law and
morality.
Hart responds by denying Fuller's claim
that the principles of legality constitute
an internal morality; on Hart's view, Fuller
confuses the notions of morality and
efficacy
- while Hart concedes that something like
Fuller's eight principles are built into the
existence conditions for law, he
concludes that they do not constitute a
conceptual connection between law and
morality.
-Fuller's principles operate
internally, not as moral ideals, but
merely as principles of efficacy. As
Fuller would likely acknowledge,
the existence of a legal system is
consistent with considerable
divergence from the principles of
legality. Legal standards, for
example, are necessarily
promulgated in general terms that
inevitably give rise to problems of
vagueness. And officials all too
often fail to administer the laws in
a fair and even-handed manner
even in the best of legal systems.
- Insofar as these principles are
built into the existence conditions
for law, it is because they operate
as efficacy conditions and not
because they function as moral
ideals.
- Hart's response overlooks the
fact that most of Fuller's eight
principles double as moral ideals
of fairness. For example, public
promulgation in understandable
terms may be a necessary
condition for efficacy, but it is also
a moral ideal; it is morally
objectionable for a state to
enforce rules that have not been
publicly promulgated in terms
reasonably calculated to give
notice of what is required.
 - The correct legal principle is the one that makes
Ronald the law the moral best it can be.
Dworkin's - adjudication is and should be interpretive:
"Third Judges should decide hard cases by interpreting the
Theory" political structure of their community in the
following, perhaps special way: by trying to find the
best justification they can find, in principles of
political morality, for the structure as a whole, from
the most profound constitutional rules and
arrangements to the details of, for example, the
private law of tort or contract
- the judge must approach judicial decision-making
as something that resembles an exercise in moral
philosophy. Thus, for example, the judge must
decide cases on the basis of those moral principles
that " in the soundest theory of law that can be
provided as a justification for the explicit
substantive and institutional rules of the jurisdiction
in question"
-a legal principle maximally contributes to such a
justification if and only if it satisfies two conditions:
(1) the principle coheres with existing legal
materials; and (2) the principle is the most morally
attractive standard that satisfies
C. LEGAL -the thesis that the existence and content of law
POSITIVISM depends on social facts and not on its merits.
- law is a matter of what has been posited (ordered,
decided, practiced, tolerated, etc.); as we might say
in a more modern idiom, positivism is the view that
law is a social construction.
- a philosophy of law that emphasizes the
conventional nature of law—that it is socially
constructed.
- Legal positivism does not base law on divine
commandments, reason, or human rights.
To respond to Legal
positivism
- to draw attention to the
idea that law is “positive”
or “posited,” as opposed to
being “natural” in the sense
of being derived from
natural law or morality.
- two kinds of legal argument.
Arguments of policy "justify a political
decision by showing that the decision
advances or protects some collective goal
of the community as a whole" (Dworkin
1977, 82)
- In contrast, Arguments of principle
"justify a political decision by showing
that the decision respects or secures
some individual or group right".
-Finnis says, the reasons we have for - Dworkin denies that there can
establishing, maintaining or reforming be any general theory of the
law include moral reasons, and these existence and content of law; he
reasons therefore shape our legal denies that local theories of
concepts. But which concepts? Once one particular legal systems can
concedes, as Finnis does, that the identify law without recourse to
existence and content of law can be its merits, and he rejects the
identified without recourse to moral whole institutional focus of
argument, and that “human law is positivism.
artefact and artifice; and not a conclusion
from moral premises,”
 it is a conceptual truth about law that legal validity
can ultimately be explained in terms of criteria that
Conventiona are authoritative in virtue of some kind of social
lity Thesis convention.
-- emphasizes law's conventional nature, claiming
that the social facts giving rise to legal validity are
authoritative in virtue of some kind of social
convention.
- denies naturalism's Overlap Thesis: that there is
no conceptual overlap between the notions of law
Social Fact and morality.
Thesis
- also known as the Pedigree Thesis) asserts that it is
a necessary truth that legal validity is ultimately a
function of certain kinds of social facts. .
H.L.A. Hart (1996) believes the criteria of
legal validity are contained in a rule of
recognition that sets forth rules for
creating, changing, and adjudicating law.
On Hart's view, the rule of recognition is
authoritative in virtue of a convention
among officials to regard its criteria as
standards that govern their behavior as
officials.
- John Austin (1995) argues that the
principal distinguishing feature of a legal
system is the presence of a sovereign
who is habitually obeyed by most people
in the society, but not in the habit of
obeying any determinate human
superior.
- On Austin's view, a rule R is legally valid
(that is, is a law) in a society S if and only
if R is commanded by the sovereign in S
and is backed up with the threat of a
sanction. The relevant social fact that
confers validity, on Austin's view, is
promulgation by a sovereign willing to
impose a sanction for noncompliance.
- Dworkin rejects not only positivism's
Social Fact Thesis
-Hart takes a different view of the
Social Fact Thesis.
-Hart believes that Austin's theory
accounts, at most, for one kind of
rule: primary rules that require or
prohibit certain kinds of behavior.
-Hart argues Austin overlooks the
existence of secondary meta-rules
that have as their subject matter
the primary rules themselves and
distinguish full-blown legal
systems from primitive systems of
law:
[Secondary rules] may all be said
to be on a different level from the
primary rules, for they are
all about such rules; in the sense
that while primary rules are
concerned with the actions that
individuals must or must not do,
these secondary rules are all
concerned with the primary rules
themselves.
- Hart distinguishes three types of
secondary rules that mark the
transition from primitive forms of
law to full-blown legal systems:

Separability Thesis asserts that law and morality are
Separability conceptually distinct.
Thesis
- More commonly, the Separability Thesis is
interpreted as making only an object-level claim
about the existence conditions for legal validity.
Hart describes the Separability Thesis as
no more than the "simple contention that
it is in no sense a necessary truth that
laws reproduce or satisfy certain
demands of morality, though in fact they
have often done so"
Klaus F¸þer (1996) interprets Separability
thesis as making a meta-level claim that
the definition of law must be entirely free
of moral notions. This interpretation
implies that any reference to moral
considerations in defining the related
notions of law, legal validity, and legal
system is inconsistent with the
Separability Thesis.
(1) the rule of recognition, which
"specifies some feature or
features possession of which by a
suggested rule is taken as a
conclusive affirmative indication
that it is a rule of the group to be
supported by the social pressure it
exerts" (Hart 1994, p. 92); (2)
the rule of change, which enables
a society to add, remove, and
modify valid rules; and
(3) the rule of adjudication, which
provides a mechanism for
determining whether a valid rule
has been violated.
- According to inclusive positivism
(also known as incorporationism
and soft positivism), it is possible
for a society's rule of recognition
to incorporate moral constraints
on the content of law. Jules
Coleman and Hart, who maintains
that "the rule of recognition may
incorporate as criteria of legal
validity conformity with moral
principles or substantive values
- In contrast, exclusive positivism
(also called hard positivism)
denies that a legal system can
incorporate moral constraints on
legal validity. Exclusive positivists
like Raz (1979) subscribe to the
Source Thesis, according to which
the existence and content of law
can always be determined by

John Austin “The existence of law is one thing; its merit and
(1790-1859) demerit another. Whether it be or be not is one
enquiry; whether it be or be not conformable to an
assumed standard, is a different enquiry.”
law is characterized by a basic form and basic norm.
Hans Kelsen The form of every law is that of a conditional order,
directed at the courts, to apply sanctions if a certain
behavior (the “delict”) is performed.
- law is an indirect system of guidance: it does not
tell subjects what to do; it tells officials what to do
to its subjects under certain conditions.
- law is a normative system: “Law is not, as it is
sometimes said, a rule. It is a set of rules having the
kind of unity we understand by a system”
- Kelsen insists that “The science of law does not
prescribe that one ought to obey the commands of
the creator of the constitution”
-Hart rejects Kelsen's transcendentalist, Kantian
H.L.A. Hart view of authority in favour of an empirical,
(1907-92) Weberian one.
- the authority of law is social. The ultimate
criterion of validity in a legal system is neither a
legal norm nor a presupposed norm, but a social
rule that exists only because it is actually practiced.
Law ultimately rests on custom: customs about who
shall have the authority to decide disputes, what
they shall treat as binding reasons for decision, i.e.
reference to its sources without
recourse to moral argument.
Henry Maine's criticism of Austin on the
ground that his theory would not apply to
certain Indian villages. The objection
embraces the error it seeks to avoid. It
imperialistically assumes that it is always
a bad thing to lack law, and then makes a
dazzling inference from ought to is: if it is
good to have law, then each society must
have it, and the concept of law must be
adjusted to show that it does.
-Hart rejects Kelsen's transcendentalist,
Kantian view of authority in favor of an
empirical, Weberian one.
- the authority of law is social. The
ultimate criterion of validity in a legal
system is neither a legal norm nor a
presupposed norm, but a social rule that
exists only because it is actually practiced.
Law ultimately rests on custom: customs
about who shall have the authority to
decide disputes, what they shall treat as
binding reasons for decision, i.e. as
sources of law, and how customs may be
changed.
Lon Fuller points that it isn't enough for a -the “peculiar quality” whose
legal system to rest on customary social existence Fuller doubts is a
rules, since law could not guide behavior familiar feature of many moral
without also being at least minimally practices. Compare promises:
clear, consistent, public, prospective and whether a society has a practice
so on -- that is, without exhibiting to of promising, and what someone
some degree those virtues collectively has promised to do, are matters
called “the rule of law.” of social fact. Yet promising
- furthermore, Fuller says if law is a creates moral obligations of
matter of fact, then we are without an performance or compensation. An
 as sources of law, and how customs may be explanation of the duty to obey. He “amoral datum” may indeed
changed. gloatingly asks how “an amoral datum figure, together with other
- rule of recognition: specifies the ultimate criteria called law could have the peculiar quality premises, in a sound argument to
of validity in the legal system. It exists only because of creating an obligation to obey it” moral conclusions.
it is practiced by officials, and it is not only the
recognition rule (or rules) that best explains their
practice, it is rule to which they actually appeal in
arguments about what
- the rule of recognition is an official custom, and
not a standard necessarily shared by the broader
community. standards they are bound to apply.
- Hart thinks that there is only a prima facie duty to
obey, grounded in and thus limited by fairness -- so
there is no obligation to unfair or pointless laws
Joseph Raz -argues that there isn't even a prima facie duty to
obey the law, not even in a just state.