(As of 10/08/18) This is a compilation of my personal notes, annotations, and insights from have died before them and
nd in that their acts, committed in desperation, were
the cases and readings as well as the discussions in the class of Atty. Villareal.
All for love.
–BB
PHILOSOPHY OF LAW
I. “WHY” EXERCISE – “WHY AM I ATTRACTED TO THE LAW?”
Preliminary Questions:
1. Why Law? Why Law School?
2. What is so attractive about the Law?
3. What makes it different from other things?
4. At this point, what is its purpose (for me)?
A. LAW AND NECESSITY
CASE (THE QUEEN v. DUDLEY AND STEPHENS)
On 1884, Dudley and Stephens were cast away in a storm in the high seas,
forced to leave their vessel and transferred to an emergency boat with two other
men, Brooks and Parker. They had no supply of water and food, except turnips.
th
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 few days. They had no fresh water,
th
except the few they amassed from the rain. On the 18 day, Dudley and
Stephens spoke to Brooks about what should be done if no rescue came;
someone suggested that someone should be sacrificed to save the rest, but
Brooks dissented and Parker was not consulted. The next day, Dudley proposed
to Stephens and Brooks that lots should be cast who should be put to death to
save the rest, but Brooks refused to consent. The following day, while they were
talking about having families, it suggested it would be better to kill 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. The next day, with no vessel
appearing, Dudley told Brooks that he would get some sleep, while making signs
that Stephens and Brooks that they should go ahead with the plan. Stephen
agreed, but Brooks dissented once again. Parker who was quite helpless and
extremely weak from famine and by drinking sea water was unable to make a
resistance. Dudley, with the assent of Stephens, went to the boy, and 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 for 4 days. On the fourth day
after the act had been committed, the boat was picked up by a passing vessel,
and the prisoners were rescued, still alive, but in the lowest state of prostration.
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 days have died
of famine. Moreover, Parker, being in a much weaker condition, was likely to
justified by their need to survive as there was no sail in sight, nor any reasonable
prospect of relief. They posited that, there was no appreciable chance of saving
life except by killing someone for the others to eat. The Court at Exeter found
Dudley and Stephens guilty of felony and murder.
The said case is elevated for a special verdict.
The Attorney General, counsel for the Crown argued that, the law states that
where a private person acting upon his own judgment takes the life of a fellow
creature, his act can only be justified on the ground of self-defence. Said
principle has no application to the case, as Dudley and Stephens were not
protecting themselves against any act of Parker.
The counsel for the men, on the other hand, contended that, were Dudley, et.al
not guilty of murder, at the time when they killed Parker, but killed him under the
pressure of necessity. They forwarded the position that, necessity will excuse an
act which would otherwise be a crime, entering homicide by necessity as a
defense. They claimed that, homicide is excusable through unavoidable
necessity and upon the great universal principle of self-preservation, which
prompts every man to save his own life in preference to that of another, where
one of them must inevitably perish.
Whether they were guilty of murder? NO.
In considering the definitions of murder in different books, not one includes the
doctrine that the in order to save your own life you may lawfully take away the life
of another, when that other is neither attempting nor threatening yours, nor is
guilty of any illegal act whatever towards you or anyone else.
Looking through jurisprudence, the necessity [that is often considered] 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 defense); and (2) the
necessity which relates to the public justice and safety. It also expressly
stated that, the only justifiable homicide of a private nature is the defence against
force of a man's person, house, or goods.
Lord Hale: Extreme necessity does not justify larceny.
Sir Michael Foster: “Necessity and self-defense” are convertible terms.
Wharton case (cited in Stephen’s digest): Sailors had no right to throw
passengers overboard to save themselves, but the proper 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 this country.
Lord Bacon: Necessity is of 3 sorts: 1. necessity of conservation of life,
2. necessity of obedience, and 3. necessity of the act of God or of a
stranger.
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The Court ruled that, deliberate killing of Parker was clearly murder, unless
the killing can be justified by some well-recognised excuse admitted by the
law. There was no such excuse in this case, unless the killing was justified
by what has been called “necessity.” But the temptation to the act which
existed here was not what the law has ever called necessity.
Moreover, though law and morality are not the same, and many things may
be immoral which are not necessarily illegal, yet the absolute divorce of
law from morality would be of fatal consequence. To preserve one's life is
generally speaking a duty, but it may be the plainest and the highest duty to
sacrifice it. War is full of 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. The implications to claim otherwise raise the following
questions: 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, 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
deliberately taking another's life to save his own.
Dudley and Stephens are GUILTY of murder.
B. A MATTER OF DEFINITION
CASE (NARUTO, BY AND THROUGH HIS NEXT FRIEND* v. SLATER)
(*Next Friend: Not a party to the proceeding, nor are they a formally-appointed guardian;
instead, they are considered an agent of the court whose role is to protect the rights of the
incompetent person.)
At the core of the case is the question of whether a monkey may sue humans,
corporations, and companies for damages and injunctive relief arising from
claims of copyright infringement. To answer such question requires first an
answer to the monkey’s claim has standing.
Naruto was a 7-year-old macaque in a reserve in Indonesia. In 2011, David
Slater left his camera unattended in the reserve. Naruto allegedly took several
photos of himself with Slater’s camera. Slater and Wildlife Personalities, Ltd.
published the Monkey Selfies in a book that Slater created. The book identified
Slater and Wildlife as the copyright owners of the Monkey Selfies. Slater, in
certain parts of the book, admits that Naruto took the photographs.
In 2015, PETA (People for the Ethical Treatment of Animals) and Dr. Antjje
Engelhardt filed a complaint for copyright infringement against 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 establish standing both based on Article 3
and the Copyright Act. The district court granted motion to dismiss. PETA and Dr.
Engelhardt appealed on behalf of Naruto, but after filing, Dr. Engelhardt
withdrew; therefore, only PETA remains to be the only “next friend.”
(1) Whether PETA has “next friend” status to represent Naruto’s copyright
claims? NO.
(2) Whether Naruto can sue Slater for damages? NO.
The Court ruled that, PETA cannot validly assert “next friend” status to represent
claims made for the monkey both (1) because PETA has failed to allege any
facts to establish the required significant relationship 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.”
In order to establish next-friend standing, the following must be shown:
1. Petitioner is unable to litigate his own case due to mental incapacity,
lack of access to court, or other similar disability; and 2. the next friend
has some significant relationship with, and is truly dedicated to the best
interests of the petitioner.
o PETA does not have to claim a relationship with Naruto that is
any more significant than its relationship with any other animal.
nd
PETA fails the 2 requirement and cannot sue as Naruto’s
next friend.
o But, even if PETA had alleged a significant relationship with
Naruto, it still could not sue as Naruto’s next friend.
“[T]he scope of any federal doctrine of ‘next friend’
standing is no broader than what is permitted by the…
statute.”
o Although Congress has authorized “next friend” lawsuits
on behalf of habeas petitioners and on behalf of a “minor
or incompetent person,” there is no such authorization for
“next friend” lawsuits brought on behalf of animals.
The court in Cetacean did not rely on the fact that the statutes at issue
in that case referred to “persons” or “individuals.” Id. Instead, the court
crafted a simple rule of statutory interpretation: if an Act of Congress
plainly states that animals have statutory standing, then animals
have statutory standing. If the statute does not so plainly state,
then animals do not have statutory standing. The Copyright Act
does not expressly authorize animals to file copyright infringement
suits under the statute.
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The Court ruled that, the district court did not err in concluding that Naruto—and,
more broadly, animals other than humans—lack statutory standing to sue under
the Copyright Act.
In the concurring opinion of Smith:
Animal-next-friend standing is particularly susceptible to abuse. Allowing
next-friend standing on behalf of animals allows lawyers (as in Cetacean)
and various interest groups (as here) to bring suit on behalf of those
animals or objects with no means or manner to ensure the animals’
interests are truly being expressed or advanced. Such a change would
fundamentally alter the litigation landscape. Institutional actors could simply claim
some form of relationship to the animal or object to obtain standing and use it to
advance their own institutional goals with no means to curtail those actions.xxx
This literally creates an avenue for what Chief Justice Rehnquist feared:
making the actual party in interest a “pawn to be manipulated on a
chessboard larger than his own case.”
C. LAW, JUSTICE, AND SOCIAL ORDER: WHERE DOES BATMAN FIT IN?
PATTERSON’S “NO MAN’S LAND: SOCIAL ORDER IN GOTHAM CITY”
(PART TWO OF WHITE AND ARP’S BATMAN AND PHILOSOPHY: THE
DARK KNIGHT OF THE SOUL)
Gotham* and New Orleans** as No Man’s Lands
(*Post-earthquake; **Post-Hurricane Katrina)
o What happens to social order? Do human beings resort to a
more primal, violent nature in our struggle to survive?
o Anarchy as the absence of order
o THOMAS HOBBES
Human beings in natural state are inclined to war
and distrust.
Human life is a competition to obtain power; life is a
struggle over a limited number of material goods.
“Fear motivates us to seek peace; we agree to a
social contract out of a desire to preserve own lives in
a social order.”
Leviathan: Sovereign power that preserves the order
and protects those subjects who have willingly
submitted to that rule
William Petit versus Jim Gordon: Violence in the Quest for Justice
o How to oppose anarchy?
(Gordon and Petit start out on the same side; they are both
seeking to reclaim Gotham and rebuild social trust in the police
force. But as the plot progresses, the radical difference
between Petit and Gordon is revealed—that is, difference in
tactics in reestablishing a sovereign power over chaos.)
2 Ways that Sovereignty can come to power (in Hobbes’
Leviathan)
1. PATERNAL POWER (Gordon)—People can agree to a
rule; and
2. DESPOTICAL POWER (Petit)—Ruler can seize power
through intimidation and force
o Violence as disruption of order
Petit: The only way to deal with criminals is to
exterminate them (*Parallel to the Duterte
administration’s approach to the War on Drugs)
In contrast to the excessive violence, competition, and
hatred expressed in the activity of the gangs and the
power maneuvers, there are still stories of
compassion. Without compassion, there is only
insecurity (i.e., Father Christian and Dr. Leslie
Thompkinds).
o Role of security in society What the society lacks, Batman
supplies.
Batman learns to work within the system of gangs,
acknowledging that people feel lost without loyalty to
a leader (a sovereign) who can protect them and help
distribute goods justly.
“Batman must first dismantle their systems of
oppression to establish a new order.xxx The
rebuilding of Gotham is a long, tortuous road, with
many sacrifices along the way.”
o “Batman’s ultimate enemy is chaos: Arkham’s criminally
insance celebrated in crippled Gotham, a city ruled by anarchy.
Batman’s crusade is not only against them, but more
important, against what they represent. Though we often take
social order for granted, we may also have a deep-seated fear
about whether we could survive if that order were ever to
crumble.”
o “Hopefully, we will have our own heroes in these moments of
trial, common people who will rise to the challenges.”
SPANAKOS’ “GOVERNING GOTHAM” (PART TWO OF WHITE AND ARP’S
BATMAN AND PHILOSOPHY: THE DARK KNIGHT OF THE SOUL)
Legitimacy and Violence
o Superman as “legitimate” (as his use of force is licensed and is
an agent of the state) vs. Batman as “illegitimate” (who are not
licensed)
o MAX WEBER
State as the institution that holds a monopoly on
the legitimate use of coercion in a given territory
Through the police and military, the state—and only
the state—may enforce authority.
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 The use of violence by non-state actors (territorists, o Batman always violates criminal’s civil rights, since he has no
revolutionaries, criminals, and vigilantes) occurs, and authority to act as an agent of the law, and Gordon knows that,
may even be understandable on occasion, but it can but he does not place right and the law before justice and
never be legitimate. order.
Batman as subversive Concept of order and the o Lana Lang in defense of Batman: “We live in a shadow of
good goes beyond the state; his use of violence is in crime… with the unspoken understanding that we are
addition, though not in coordination, with the state victims—of fear, of violence, of social impotence. A man
o “Law and order” has risen to show us that power is, ad always has been in
State as the only location of law and order But, our hands. We are under siege—He’s showing us that we
if only the state can legitimately enforce the law, and can resist.”
use violence in the process, logically any other o No state can claim that it can guarantee both law and order
violence is illegitimate and criminal, regardless of flawlessly all the time. To a certain extent, society must
whether it produces good results. participate in its own defense, and it is pointed out how very
Even if Gotham is safer because of Batman, it is no important personal relationships and trust are in establishing
more “orderly”—it has explicitly accepted the idea that the line between the just use of violence and the proper
one individual can use violence legitimately. enforcement of law.
Hobbes: “Without a state to enforce order, life is solitary, poor,
nasty, brutish, and short.”
o Humans have unlimited liberty, but they are guided by
passions, and liberty soon becomes license, and the state
of nature becomes a war of all against all.
o It is so oppressive that man will cede virtually all of his liberties
to a sovereign so that order can be established.
o “Though they have the ability to enforce law, establish order,
and protect citizen life, they allow a state of license to prevail in
Gotham because it allows cover for their activities. Rather than
the state ending the chaos of the state of nature, as Hobbes
hoped, the state itself is a participant in the war of all against
all.”
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.

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

Billie Blanco (1D) | Ateneo Law 2022 | 9

III. JUSTICE AND LAW
A. DE PEDRO’S “PERSON AND LAW (LECTURE 2)
2.1: JUSTICE AS THE RESULT OF ORDERLY INTERPERSONAL
RELATIONS
Plato: Each man is to be given what is due to him.
Virtue of justice (meaning, habitually giving what one is due)
o Even if to be good is much more than to be just, a man who is
just is ordinarily considered to be a good man.
Western civilization
o Built upon the conviction that certain things are due to each
man for the sake of being a man and that other men ought to
give them to him, because they belong to him.
Opus justitiae, pax: Peace is the fruit of justice.
o What is peace? Peace is the tranquillity of order.
The fruit of disorder is unhappiness.
Aristotle: “The experience of many different forms of injustice makes
quite obvious the existence of a variety of forms of justice.”
Kant: “Men’s greatest and more frequent troubles are not so much the
result of adversity as the fruit of the injustices inflicted upon them by
other men.”
2.2: PERSONS
Departure point between 2 concepts of human law: Distinction
between a person and animal—between who and what (“Who did this?”
vs. “What did it?”)
o Persons are responsible (insofar as they can answer for
themselves)
They can because the answer is within them. They
are not determined by compulsive forces beyond their
own control.
They enjoy a broad level of freedom of choice.
They enjoy a capacity of self-determination.
o Despite this, humans are not totally free
We are capable of holding our own immanence and of opening up at will
to other personal beings, establishing with them relations of mutual
knowledge, love, and cooperation Result of choice, not of
necessity
“Our ability to establish interpersonal relations that either respect or
disregard what is due to others is the reason why we, human persons,
are ethical beings.”
“This is to be a person. There must be a reason why humans act like
that, and not like little dogs, crocodiles, or birds; why they are
responsible and free; can love and hate; communicate in truth or in
falsehood; act with a purpose in mind, and not out of compulsion;
possess a sense of personal dignity; and find out that there is a law to
be respected in their mutual relations; why they should be willing to
accept obligations founded on authority considered to be legitimate. It is
impossible to discern among animals not even one of the above-
mentioned characteristics. Therefore, we have concluded ever since
that there must be something that makes us specifically different
from them.”
2.3: RATIONAL SOCIABILITY
Justice is relational
Persons are sociable, but so animals are too.
o But only humans decide, through reasonable choices, the kind
of relationship with others that they want to enter into.
Social relations Established with rational and ethical
considerations in mind
o “Social relations should not only be rational, since decisions to
dominate, kill, plunder, or abuse are often rationally pondered;
they must also be ethical, since they ought to respect the
social order proper to persons.”
Fruit of reasonable philosophizing Notion of Law
2.4: LAW AND POSITIVE LAW
Classical definition of positive law: “Law is the ordination of reason
for the common good, promulgated by those who legitimately
tasked to take care of the community.”
o Features that must be present in real law:
1. Order (meaning, right disposition among persons and
among persons and things);
2. Rational (meaning, follow[ing] the right reason or saying
that respecting such order will bring about the intended
effects);
3. Serves the common good* (meaning, the sum to those
conditions of social life which allow social groups and their
individual members relatively thorough and ready access
to their own fulfilment);
(*Common good as the summation of all that is good for
the human person)
4. Ought to be promulgated (meaning, formally published so
that it can be sufficiently known to everyone affected); and
5. By legitimate authority (meaning, those persons that every
society has entitled to rule)
At the foundation of every piece of legislation there is a personal
right that needs to be preserved, protected, enhanced, or
developed.
Double order of rights:
1. Belong to the person (i.e., human rights); or
2. Result from man’s insertion in a concrete society
(Practical arrangements for the preservation, protection,
enhancement, and development of those natural rights)
Positive rights and Natural rights
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 o Natural, in this sense, means due to men for the sake of being
men and nothing else
2.5: GRANTED RIGHTS
Natural rights cannot be granted by any human being, much less by
any institution, since they are naturally possessed.
o “Those who have granted others the right to live, or have
attributed to themselves the power to deny the right to live are
tyrants who have abused the power they enjoy… No matter
how they have been justified from the legal point of view, they
constitute acts of rational and voluntary regression to animal
behavior, to the law of the strongest.”
Legitimate authority Limited power to grant legal rights and to impose
legal duties to its subjects
o ONLY as long as (1) those rights and duties are specifications
or practical applications of the natural rights, or (2) at least
when, with full respect for them, they contribute to enhance the
good of the community and to the progress of civilization
Granted rights or imposed duties not just to be in agreement with
justice, BUT also required that these rights and duties are properly
distributed
Aquinas: Distributive justice…distributes common good proportionally.
Legal rights Imperfect
o Not possible for the law-giver to consider all personal situations
What is naturally good, both personally and in relation with the
common good, must prevail over granted rights and duties.
Principle of the supremacy of EPIKEIA* over the letter of legal
prescription
(*Epikeia refers to, perfect realization of the legal justice)
o Embodies the justice whose attainment is supposed to be the
guiding intention of the human legislator
o “Only one who is a true lover of justice can discern how to use
it without turning it into an excuse to fail in one’s duty. It is the
way a just and prudent legislator would have expressed the
law if he would have been aware of that specific situation.”
B. QUESTIONS 58 (OF JUSTICE) AND 61 (OF COMMUTATIVE AND
DISTRIBUTIVE JUSTICE) IN BAUMGARTH AND REGAN’S “ON LAW,
MORALITY, AND POLITICS”
QUESTION 58: OF JUSTICE
(Aquinas defines justice as the perpetual and constant will to render to
others their rights (A.1), and justice is always in relation to others (A.2).
Justice is virtue (A.3) and belongs to the will (A.4). Justice in general is virtue
in general insofar as justice directs the acts of other virtues to the common
good (A.5), but justice is essentially different from other virtues (A.6). There s
also particular justice (A.7), which concerns external actions and things (A.8).
Justice is not about governing emotions (A.9), and the mean of justice is a
real mean, not a mean of reason (A.10). Just acts render to others what is
owed to them (A.11). Justice is the greatest moral virtue (A.12).)
SUMMARIES PER ARTICLE (*Sourced from the reference material in the linked
below from the University of Notra Dame, but verified, annotated, and edited
accordingly. -BB)
(https://www3.nd.edu/~afreddos/courses/453/justice.htm)
A. 1-2—Justice can be defined as the habit by which one renders to each his
right or due with a constant and perpetual will. Note in art. 2 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, it is also true that one who is just in
Plato's sense will have that virtue of the will which is general or legal justice--or
so, at least, it seems, because a general devotion to the common good or law-
abidingness is on Plato's view a defining characteristic of the just or morally
upright person.
A. 3—Justice is a virtue even though just acts are the fulfillment of
commands and hence of obligations. Note how in ad 2 St. Thomas deals with
supererogation. It does seem that we can have supererogation, relatively
speaking, in that we might sometimes go beyond the strict demands of justice in
our dealings with one another. But one might also claim that there can be no true
supererogation, absolutely speaking, in a moral theory according to which we are
ultimately commanded to love one another as Christ has loved us. Perhaps we
can discuss this. In any case, St. Thomas later notes in art. 11 that (natural)
mercy and liberality are traced back to justice as potential parts and in that sense
fall under justice.
A.4—Justice is ordered toward doing something aright and not toward
knowing something aright, and so justice must have an appetitive power as its
subject. Further, since it is rational rather than sentient apprehension which has
our dealings with others and our rendering them their due as its proper object, it
follows that justice must reside in the rational appetitive power, viz., the will.
A.5-6—In these 2 articles, Aquinas deals with justice insofar as it is a general
virtue, i.e., insofar as it is a virtue which underlies any good action that
affects our relations with others. When one puts it this broadly, it is evident
that general justice provides an end, the common good, that can motivate even
acts of temperance and fortitude. That is, when acts of temperance and fortitude
are directed to the common good, they become, as it were, acts of (general)
justice as well, much as such acts can be turned into acts of charity if they are
motivated by the (general) virtue of charity. For all such actions can at least
make one a 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,
indeed, as acts of justice, even though, strictly speaking, general justice is best
Billie Blanco (1D) | Ateneo Law 2022 | 11
thought of, like charity, as causing or motivating such actions. Aquinas calls
general justice 'legal justice' (iustitia legalis), the virtue of a good citizen or of a
good member of a community.
In A.6, Aquinas clarifies the nature of this legal justice, claiming that it is general
insofar as it is a cause of all the acts of the other virtues (prudence,
temperance, fortitude, and particular justice) insofar as it orders them
toward the common good. He uses an analogy: "Just as charity can be called a
general virtue to the extent that it orders the acts of all the virtues to the divine
good, so, too, legal justice can be 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 sovereign and secondarily in the subjects of the sovereign.
A. 7-11—Aquinas deals with justice insofar as it is a particular virtue, i.e.,
insofar as it specifies general justice with respect to our particular relations
with particular individuals as parts of a political community and with
respect to particular goods.
As. 7 and 8 clarify the nature and object of particular justice. As a particular virtue
justice has a special subject matter, viz., our relations to others, and its own
object, the just; and in this way, like temperance and fortitude in their own way,
particular justice is directed by general justice toward the common good with
respect to the specific subject matter of particular justice--just as, in the case of
infused justice, particular justice is directed by charity toward love of God
and neighbor with respect to the specific subject matter of particular
justice.
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 with the passions,
though it is painfully obvious that the roots of injustice often (though not
always) lie in passions that are not subject to reason.
A. 10 makes clear that justice has a real mean rather than, as with fortitude and
temperance, a mean that is adjusted to particular temperaments. Justice, by
contrast, is such that its demands are satisfied by the rendering of
whatever is due in a given situation, by no more and no less.
A. 11 specifies the proper act of justice, which is to render each his due. Of
course, there will be other related virtues having to do with our relations to others
which take us beyond the demands of justice; and these will be potential parts of
it.
A. 12—Justice is foremost among the moral virtues, regardless of whether it
is taken as a general virtue that orients us toward the common good or as a
particular virtue that is ordered toward the particular good of other
individuals. It is by justice (and charity) that we overcome our inborn
tendency to center our lives on ourselves.
QUESTION 61: OF COMMUTATIVE AND DISTRIBUTIVE JUSTICE)
(Aquinas distinguishes between two kinds of particular justice: 1.
commutative justice, which consists of just exchanges between individuals; and
2. distributive justice, which consists of just distributions of common goods to
individuals (A.1). The mean of 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).)
A.1—Aquinas divides justice into commutative justice, which deals with the
relations between individuals within a given community, and distributive
justice, which deals with the relation of the community as a whole to individuals.
Aquinas’s conception of the individual and the community self-consciously steers
between individualism, which recognizes only commutative justice and thinks of
the common good as a mere compilation of private goods and the role of the
sovereign as simply to prevent private individuals from harming one another in
pursuit of their independently conceived private goods, and collectivism , which
recognizes only distributive justice and thinks of the individual's private good as
wholly exhausted by the public common good insofar as this public good is
determined by those in authority.
A.2—Commutative and distributive justice observe different means. In
distributive justice, where goods that are common to everyone are distributed
by the ruler according to different standards (virtue, wealth, power, expertise,
need, etc.), the mean is equality of 'geometrical' proportion, which involves a
certain proportionality, rather than equality, between the common goods to be
distributed and the various individuals. So individuals need not be treated in
exactly the same way, and those with greater virtue, expertise, need, etc., might
receive unique privileges that ultimately contribute to the well-being of the whole.
Commutative justice, on the other hand, has an arithmetic mean. That is, one
receives something of equal value to what one gives or has taken from one.
A.3-4—The matter of justice involves: (a) things and their disposition, (b)
persons and their dignity, and (c) works. The two forms of justice have 2
different operations (distributing and commuting) with respect to this matter. A
second way to think of this is to take the principal actions of the two types of
justice as themselves the matter of justice.
Aquinas asks whether the just is counter-suffering ('retaliation': contrapassum--
balancing the suffering against the action by which the injury is inflicted). He
answers that retribution or restitution is the object of commutative justice,
since commutative justice seeks to keep or restore a balance between
individuals.
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C. RAWL’S “A THEORY OF JUSTICE” (CHAPTER 2, PARTS 10 to 19 AND
CHAPTER 3, PARTS 20-24)
Primary subject of the principles of social justice Basic structure
of society—or, the arrangement of major social institutions into one
scheme of cooperation.
o Assignment of rights and duties in these institutions as
well as the distribution of the benefits and burdens of
social life
Principles of justice for institutions /=/ Principles of justice which apply to
individuals
Institution: Refer to, a public system of rules which defines offices and
positions with their rights and duties, powers, and immunities, and the
like
o Can be 1. Abstract object (a possible form of conduct
expressed by a system of rules); or 2. Realization in the
thought and conduct of certain persons at a certain time and
place of the actions specified by these rules
o To say an institution is (un)just is to say that its realization
would be (un)just.
o It is important for Rawls that institutions are public systems of
rules People know certain things about their institutions:
they know what the rules are, and that others know those rules
Distinction between a single rule (or, a group of rules), an institution
(or, a major part thereof), and the basic structure of the social
system as a whole
o One or several rules of arrangement may be unjust without the
institution itself being so. Similarly, an institution may be
unjust although the social system as a whole is not.
To
Formal justice: Adherence to principle, or as some have said,
obedience to system
o Formal justice in the case of legal institutions as, simply an
aspect of the rule of law which supports and secures legitimate
expectations
o The strength of the claims of formal justice—of obedience to
system—clearly depend upon the substantive justice of
institutions and the possibilities of their reform.
Two Principles of Justice
First (or, the Principle of Equal Liberty): Each person is to have an equal right
to the most extensive scheme of equal basic liberties compatible with a similar
scheme of liberties for others.
Difference Principle: Social and economic inequalities are to be arranged so
that they are both (a) reasonably expected to be to everyone’s advantage, and
(b) attached to positions and offices open to all.
Key points:
o The principles apply to the basic structure, and suppose that
the basic structure can be divided into two parts (one securing
liberties, the other distributing goods).
o The first principles contains a list of liberties. It does not read
the most extensive scheme of liberty compatible with equal
liberty for all. Liberties not on the list – e.g. the right to private
ownership of the means of production –are not basic. The only
justification for circumscribing basic liberties is that they would
interfere with another.
o One applies the second principle by first assuming (b) is met
and then maximizing the benefits (for the worst off).
o The principles are in serial order –the first principle is prior to
the second. Basic liberties cannot be sacrificed for the greater
good.
LIBERTIES: Political liberty (the right to vote and to hold public office)
and freedom of speech and assembly; liberty of conscience and
freedom of thought; freedom of the person, which includes freedom
from psychological oppression and physical assault and
dismemberment (integrity of the person); the right to hold personal
property and freedom from arbitrary arrest and seizure
Injustice, then, is simply inequalities that are not to the benefit of
all.
o The general conception of justice imposes no restrictions on
what sort of inequalities are permissible; it only requires that
everyone’s position be improved.
In the Difference Principle, unless there is a distribution that makes both
persons better off (limiting ourselves to the two-person case for
simplicity), an equal distribution is to be preferred.
o What does this mean? It means that society may undertake
projects that require giving some persons more power,
income, status, etc. than others, provided that the following
conditions are met—
(a) the project will make life better off for the people who are
now worst off, for example, by raising the living standards of
everyone in the community and empowering the least
advantaged persons to the extent consistent with their well-
being; and
(b) access to the privileged positions is not blocked by
discrimination according to irrelevant criteria
Supererogatory acts: These are acts of benevolence and mercy, of
heroism and self-sacrifice.
o It is good to do these actions but it is not one’s duty or
obligation.
o Supererogatory acts are not required, though normally they
would be were it not for the loss or risk involved for the agent
himself.
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Although a society is a cooperative venture for mutual advantage, it is
typically marked by a conflict as well as an identity of interests. There is
an identity of interests since social cooperation makes possible a better
life for all than any would have if each were to try to live solely by his
own efforts.
The idea of the original position is to set up a fair procedure so that any
principles agreed to will be just. The aim is to use the notion of pure
procedural justice as a basis of theory.
VEIL OF IGNORANCE: Imaginative device for considering what counts
as just and fair in a state of society
o Individuals are considered to be behind a veil of ignorance
when they are in the original position.
o Veil of ignorance creates an environment in which the
individuals are ignorant about their social status, gender, age,
ethnicity, abilities, level of intelligence, level of education and
likewise. In addition to that, veil prevents 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?
Preliminary questions:
1. (From a particular perspective), what is law?
2. Is law just a set of rules?
3. What is the purpose of law?
4. Does law have anything to do with morality?
5. Who benefits from the law)
A. DE PEDRO’S “PERSON AND LAW (LECTURE 2)
*See page 9-10 for full discussion.
B. LLOYD’S “THE IDEA OF LAW” (CHAPTERS 10)**
C. HART’S “THE CONCEPT OF LAW” (CHAPTERS 4 AND 5)
CHAPTER 4: SOVEREIGN AND SUBJECT
Simple model: Law as coercive orders
It is provisionally assumed that in any society where there is law,
there is actually a sovereign characterized affirmatively and
negatively by reference to the habit of obedience
Doctrine of sovereignty
o In every human society, where there is law, thre is ultimately to
be found latent beneath the variety of political forms, this
simple relationship between subjects rendering habitual
obedience and a sovereign who renders habitual obedience to
no one
o Two important points:
1. Habit of obedience
Whether habit is sufficient for: (1) the continuity of
the authority to make law possessed by a
succession of different legislators, and (2) the
persistence of laws long after their maker and
those who rendered him habitual obedience have
perished
2. Position occupied by the sovereign
Is such sovereign, who imposes limitations on
others legally limited and illimitable?
The Habit of Obedience and the Continuity of the Law
Obedience: Suggests deference to authority and not merely
compliance with orders backed by threats
o Not easy to determine the precise connection between giving
the order and performance of act (obedience)
o Obedience as a personal relationship Each only need to
obey (and no one in the community need to have express
whether another’s obedience and whether it is in any sense
right, proper, or legitimately demanded.
o On the continuity of rule making power: In the transition of
passing of power between sovereigns, it does not mean that
one was habitually obeyed, the other one will be habitually
obeyed too.
He may have the right to make law and his others
may be law, but it doesn’t follow that his law will be
habitually obeyed.
o KEY POINTS: (1) Mere habits of obedience to orders given by
one legislator cannot confer on the new legislator any right to
succeed the old and give orders on his place; and (2) Habitual
obedience to the old lawgiver cannot render by itself probably,
or any found presumption, that the new legislator’s orders will
be obeyed.
o There must have been the acceptance of the rule under
which the new legislator is entitled to succeed.
o Social rules and habits
Similarities: In both cases, behaviour in question must
be general (not necessarily invariable); and Behavior
is repeated when the occasion arises
Differences: (1) For there to be a habit, the behaviour
of the group converges (or, deviation); (2) Where
there are such rules, not only is criticism made but
deviation from standard is generally accepted as a
good reason for making it; and (3) Internal aspect of
the rules
Habit of obeying the word of the sovereign Social practice
underlying the legislative authority
o Word then becomes not just utterance, but a standard of
behaviour (so that deviation from such behaviour will be open
to criticism and his word will now generally be referred to and
accepted as justifying criticism and demands for compliance)
HOWEVER, acceptance of a rule by society at one moment does
not guarantee its continued existence
o In the absence of evidence to the contrary the rule will not be
abandoned and thus, still exists
Strength of the doctrine is that it forces us to think in realistic terms of
this relatively passive aspect of the existence of a legal system;
weakness is that it obscures or distors the other relatively active aspect
in law-making, law-identifying, and law-applying operations
The Persistence of Law
How can law made by an earlier legislator still be law for a society that
cannot to be said to habitually obey him (because he is long dead)?
“Why law already?” “Why law still?”
o A rule might exist now, but may in a sense be timeless in its
reference: it may not only look forward and refer to the
legislative operation of a future legislator, but it may also
look back and refer to the operations of a past one.
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 Notion of accepted rule conferring authority on the orders of past and
future as well as present is certainly more complex and sophisticated
than the idea of habits of obedience to a present legislator
Hobbes (echoed by Bentham and Austin): The legislator is he, not by
whose authority the laws were first made, but whose authority they now
continue to be laws.
o Authority of legislator vs. Power of legislator
Recognition as law of a legislative operation of a past sovereign
does not take the form of an explicit order, but of a tacit
expression of the sovereign’s will
Unless officials of the system then and above all the courts accept the
rule that certain legislative operations, past or present, are authoritative,
something essential to their status as la will be lacking
Legal Limitations on Legislative Power
The complement of the general habit of obedience of the subject is the
absence of any such habit in the sovereign.
o He makes the law for his subjects and makes it from a
position outside any law. There are thus, and can be, no
legal limits to his law-creating powers.
They can only be legislative limits on the legislative
power of the legislator if the legislator were under the
orders of another legislator who he habitually obeyed.
The theory does not merely state that there are some societies where a
sovereign subject to no legal limited is to be found, but that everywhere
the existence of law implies the existence of such a sovereign.
o Theory is not saying that there is no limits, but rather, no legal
limits on it.
Two things: (1) Identify in his general orders the law of a given society
and distinguish it from many other rules, principles, or standards, moral,
or merely customary by which the lives of the member are also
governed; or (2) within the area of law, we can determine whether we
are confronted with an independent legal system or merely a
subordinate part of some other system.
o ‘Limits’ implies not just the presence of duty, but the absence
of legal power.
KEY POINTS:
1. Legal limitations on legislative authority consist not of duties
imposed on legislator to obey some superior legislator but of
disabilities contained in rules which qualify him to legislate.
2. In order to establish that a purported enactment is law, you need
not trace it back to the enactment, express or tact, of a legislator,
but instead, show that it was made by a legislator who was
qualified to legislature under an existing rule and that either no
restrictions are contained in the rule or there are none
affecting this particular enactment.
3. In order to show before us an independent legal system, there is
no need to show that legislator is legally unrestricted or obeys no
other person, but show merely that the rules which qualify the
legislator do not confer superior authority on those who have
also authority over other territory.
o What this means is that the fact that he is not subject to
such foreign authority does not mean that he has
unrestricted authority within his authority.
4. Difference between a legally unlimited legislative authority and
one, while limited, is supreme
5. The absence or presence of rules limiting the legislator’s
competence to legislate is crucial, the legislator’s habits of
obedience are at most some indirect evidential importance.
The Sovereign Behind the Legislature
If we are to maintain the theory that wherever there is law there is a
sovereign incapable of legal limitation, we must search for such a
sovereign behind the legally limited legislature.
Distinction between ‘manner and form of legislation’ (or,
definitions of the legislative body) and ‘substantial’ limitations
Where legal limitations on normal operations of the supreme legislature
are imposed by a constitution, these themselves may or may not be
immune from certain forms of legal change.
The difference between a legal system in which the ordinary legislature
is free from legal limitations, and one here the legislature is subject to
them appears merely as a difference between the manner in which the
sovereign electorate chooses to exercise its sovereign powers.
Original clear image of a society divided into 2 segments: (1) the
sovereign free from legal limitation who gives orders, and (2) the
subects who habitually obey
o Given place to the blurred image of a society in which the
majority obey orders given by the majority or by all.
‘Orders’ and ‘obedience’ now mean something
entirely different
Distinction of individuals in their private capacity and the same persons
in their official capacity as electors or legislators
What then is it for such rules to exist? Since there can be rules
defining what the members of society must do to function as an
electorate (and so for the purposes of the theory as a sovereign), they
cannot themselves have the status of orders issued by the sovereign.
o At most we might say that the rules set forth the
conditions under which the elected persons aare
habitually obeyed
The simple idea of orders, habits, and obedience cannot be adequate
for the analysis of law.
o What is required instead is the notion for a rule conferring
powers, which may be limited or unlimited, on persons
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 qualified in certain ways to legislate by complying with a
certain procedure.
CHAPTER 5: LAW AS THE UNION OF PRIMARY AND SECONDARY RULES
A Fresh Start
The root cause of failure is that the element out of which the theory was
constructed do not include and cannot by their combination yield the
idea of a rule without with we can elucidate even the most elementary
forms of law.
The idea of rule is by no means, a simple one.
o Among its complexities is the difference in the types of rules:
(1) Basic/primary (Human brings are required to do or abstain
from certain actions, whether they wish or not; also imposes
duties; and concern actions involving physical movement or
changes); and (2) Parasitic/secondary (Provide human
beings may by doing or saying certain things introduce new
rules of the primary type, extinguish or modify old ones, or in
various ways determine their incidence or control operations;
also, confer powers, public of private; provide for operations
which lead not merely to physical movement or change, but to
the creation or variation of duties or obligations.)
The diverse range of cases of which the word ‘law’ is used are not
liked by any such simple uniformity, but by less direct relations to
a central case.
The Idea of Obligation
The theory of law as coercive orders started from the perfectly correct
appreciation of the fact that where there is law, there human conduct is
made in some sense non-optional or obligatory.
Difference between the assertion that someone was obliged to do
something (refers, to a statement about the beliefs and motives with
which an action is done) and the assertion that he had an obligation
to do it (refers, not just to a statement of beliefs and motives, but also
the case that the facts are not necessary for the truth of the statement)
o Notion of obligation not as psychological statements, but as
predictions or assessments of chances of incurring punishment
or ‘evil’
o Fundamental objection Predictive interpretation obscures
the fact that, where rules exist, deviations from them are not
merely grounds for a prediction that hostile reactions will follow
or that a court will apply sanctions to those that break them,
but are also a reason or justification for such reaction and for
applying the sanctions.
o If it were true also that the statement that the person has an
obligation meant that he was likely to suffer in the event of
disobedience, it would be a contradiction to say that he had an
obligation.
Two ways (meaning the existence of social rules):
1. The existence of such rules, making certain types of behaviour a
standard, is the normal, background or proper context for such a
statement; and
2. The distinctive function of such statement is to apply such a general
rule to a particular person by calling attention to the fact that his
case falls under it.
The statement that someone has or is under an obligation does
indeed imply the existence of a rule, yet it is not always the case
where rules exist the standard of behaviour required by them is
conceived in terms of obligation.
“He ought to have” /=/ “He had an obligation to”
Rules are conceived and spoken of as imposing obligations hen the
general demand for confirming is insistent and the social pressure
brought to bear upon those who deviate or threaten is great.
o The rules then supported by this serious pressure are 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)
o If a society is to live by such primary rules alone, there are
conditions which must be satisfied:
1. Rules must contain in some form restrictions on the free
use of violence, theft, and deception to which human
beings are tempted but which they must, in general,
repress if they are to coexist;
2. Though society may exhibit tensions between those who
accept the rules and those who reject the rules except
where fear of social pressure induces them to conform, it
is plain that the latter cannot be moore than the minority.
Defects in social structure of primary rules: (1) uncertainty, (2) static
character of the rules, and (3) inefficiency of the diffuse social pressure
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 o Remedy consists in supplementing the primary rules of
obligation with secondary rules.
Uncertainty Rule of recognition
Static Rule of change
Inefficiency Rule of adjudication
The combination of the primary rules of obligation with the
secondary rules of recognition, change, and adjudication gives us
not just the heart of the legal system, but a powerful tool of
analysis.

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IV. LAW AND MORALITY; NATURAL LAW AND LEGAL POSITIVISM
A. ALTMAN’S “LAW AND MORALITY” (IN ARGUING ABOUT THE LAW: AN
INTRODUCTION TO LEGAL PHILOSOPHY)
“You can’t legislate morality.”
FOUR DIFFERENT ELEMENTS OF MORALITY
1. Moral rules that obligate us to act in certain ways;
2. Conduct that is “above and beyond the call of duty”;
3. Motives from which a morally good person acts; and
4. Qualities of character that help a person act in ways that are
obligatory or praiseworthy (or, virtues)
The first part of morality—rules that can obligate us to act in certain
ways—can and ought to be legislated. But, when it comes to the
second, third, and fourth elements, it becomes unclear.
o The claim that you cannot legislate morality comes down to the
claim that it is unfair for laws to require acts that go beyond
the call of duty and impossible for laws to make us virtuous or
lead us to act from morally commendable motives.
The first part of morality is sometimes called natural law.
o It is considered to constitute a system of law in its own right,
consisting of rules that can be known by our natural powers of
reasoning.
Positive law, on the other hand, refers to any system og laws created
by humans and enforced within a given terroritory.
Distinction between natural and positive law Natural law tends to
be universally valid, imposing obligations on every individual in every
country and historical era; Positive law only claims validity over a
particularly territory and its inhabitants.
Is there then a necessary connection between law and morality?
(Law here refers to positive law and morality denotes the natural part of
morality)
o Natural Law Theory: Assert that a necessary connection does
exist between (positive) law and morality.
o Legal Positivism: Deny any such necessary connections
between law and morality.
JUDGEMENT AT NUREMBERG
Historical Background
Nuremberg Trial
o Conducted by victorious Allied Powers (US, Great Britain,
France, and Soviet Union)
o Men were charged with the crimes against peace, war crimes,
and crimes against humanity. In addition, they were charged
with conspiracy to commit said crimes.
o 3 acquitted, 18 were each convicted on at least one charge. 11
received the death sentence, while the remained received
prison statements.
o A trial is a legal proceeding and the implication of holding one
is that the accused are not merely morally guilty but legally
guilty as well. It was not enough to declare that the defendants
were evil men who committed evil deeds. It has to be argued
that they violated the law.
Criticisms of the Trial
Two distinct arguments: (1) The trial should follow the rule of law, but
that the Nuremberg proceedings seriously violated it; and (2) Law
consists of commands of a sovereign state and that only law applicable
to the German defendants were the commands of the German
sovereign (Hitler).
o FIRST ARGUMENT:
There were supposedly no valdi legal rules in effect at
the time of the defendants actions that outlawed
“crimes against humanity.”
The Nuremberg Chapter did outlaw crimes against
humanity, but that charter was adopted after the
alleged crimes took place.
International treaties did not make individuals
criminally liable for their conduct and provided no
specific punishments for violated.
The make-up of the tribunal violated the principle that
those accused of crimes have a right to defend
themselves before an impartial body.
The newly invented rules being enforced against the
defendants were not consistently and impartially
applied.
The concept of the war of aggression was not defined
with sufficient legal precision.
o SECOND ARGUMENT:
There is no global sovereign who enforces
international treaties and agreements—so called,
international law—thus, it cannot really be
authoritative and binding at all. It cannot then be a
basis for prosecution.
Under German law, the defendants had not acted
illegally. Sovereign power lay in the hands of Hitler
and the defendants who allegedly committed the
crimes simply carried out his commands.
Acts of the state cannot be illegal because the
sovereign dictates what is legal and illegal. Also: And
insofar as the defendants were subjects of the
sovereign state, their actions complied with orders
coming from their political superiors and ultimately
from Hitler.
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 Complying with the commands that come from the
sovereign cannot be a crime because those
commands dictate what counts as a crime.
Justifying the Trial
Several international treaties and agreements renounced aggressive
war and declared it to be criminal. Germany was itself party to some of
these agreements.
International community had long recognized war crimes as a violation
of international law. (The Nuremberg Charter based its definition of war
crimes on the Hague Convention of 1907 and the Geneva Convention
of 1927.)
What counts is not what country a judge comes from but his
independence and his willingness to listen to both sides and render a
verdict supported by the law and the evidence.
Sovereign states were not above the law but were obligated by
international law. And international law obligated states to refrain from
aggression, genocide, and the other conduct enumerated in the four
counts of the indictment.
Assessing the Trial
Many critics of the trial will insist that the prosecution of the German
defendants rested on a fundamentally mistaken conception of the
nature of law and crime.
o Law derives from the power of the sovereign, not from the
sovereign’s moral virtue.
The Nuremberg trial presented an example in opposing theories of
the nature of law.
NATURAL LAW THEORY: OVERVIEW
TRADITIONAL NATURAL LAW THEORY: BACKGROUND
There are universal principles of right and wrong that can be discovered
by human reason, which goes back to the time of Ancient Greece.
Natural principles as providing standards by which the rules of positive
law could be judged
o Represented a “higher law” by which the goodness or badness
of a positive law could be determined
During the Middle Ages, some natural thinkers argues that the rules of
positive law must be consistent with the obligations imposed on
everyone in order to be legally valid.
Difference between saying that the natural law should be used to
evaluate positive laws as either good or bad and saying that natural law
should be used to declare positive laws as legally valid or invalid
AQUINAS’ THEORY OF LAW
Law and the Good
Aquinas’ theory rests on his vision of the universe as governed by
a single, self-consistent, and overarching system of law.
o The entire system is under the direction and authority of the
supreme lawgiver and judge.
o Human law occupies the lower tier of this system. Above it are
eternal law, natural law, and divine law.
Eternal law: Consists of those principles of action and motion that God
implanted in things in order to enable each thing to perform its proper
functions. (Proper function determines what is good and bad.)
Natural law: Consists of principles of eternal law specific to human
beings. (Principles are knowable by our natural powers of reason, and
they guide us toward what is good for humans.)
For Aquinas, humans will not reach the ultimate good simply by
following the natural law. The principles of natural law help us
each the good that is achievable in this world. Yet, beyond this
world there is an ultimate human good: eternal salvation.
Human Law: Consists of rules framed by the head of the community for
the common good of its members.
Divine Law (2 sources: 1. Scripture, and 2. Tradition).
For Aquinas, an unjust rule as such cannot create any obligation
to obey its terms. In which disobedience to the rule would threaten to
cause social disorder, and he is saying that we are obligated to follow
an unjust rule in such cases in order to avoid the disorder.
Unjust rules framed by the ruler are unjust laws.
The purpose of human law is to promote the common good of the
members of the political community. The common good is not
promoted, however, by rules that go contrary to natural law. These
rules represent the misuse of power to frame rules for the political
community. Hence, unjust rules are without legal authority.
Assessing Aquinas
Aquinas’ claim rests on (1) God exists; (2) God has ordained that those
in charge of political communities frame laws serving the common good;
and (3) The natural reasoning powers of humans lead all reasonable
persons to agree on the basic principles that determine good and bad,
right and wrong.
Others would contract Aquinas insofar as they would argue that (1)
there is no God, (2) even if there is, God’s existence is not something
that we can known but only believe in; (3) even if we know that God
exists, we cannot known what God intends those in charge of political
communities to do; and (4) reasonable people can disagree over
fundamental principles of human good and obligation
This is where the trouble for Aquinas’ traditional version of natural
law theory starts to become obvious,. The purposes to which
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 humans have put positive law have not always been especially
moral or just.
The traditional are natural law view clearly rejects any such relativism in
favour of the idea that there are objective moral obligations.
Even if we accept that human beings are always trying to promote
justice when enacting laws, it does not follow that unjust rules cannot be
genuine laws.
Traditional natural law seems to be on shaky grounds in claiming that
unjust rules cannot have legal authority.
FULLER AND FIDELITY TO LAW
The Inner Morality of Law
Fuller argues that any genuine system of law necessarily abides by
certain moral principles—or, what he calls “inner morality of law.”
A government can control and regulate the conduct of those in society
in different ways. But a system of regulation and control is not a system
of law, according to Fuller, unless these principles are satisfied.
What are the principles that make up the inner morality of law?
o Fuller derives them from the idea that law is something
intended to regulate and control conduct by means of general
rules that are addressed to humans as agents capable of
deliberation and choice.
Fuller contends that there is a prima facie obligation to obey the rules of
any genuine system of positive law. This imposes a real moral
requirement on individuals.
There is then a duty of fidelity to the law.
The inner morality of law, however, does not guarantee that every
genuine law is just law.
o And if a law is seriously unjust, the prima facie obligation to
obey it may be overridden.
Fuller believes that the basic idea behind natural law theory can be
vindicated. The necessary connection is not as strong as traditional
natural law thinkers had postulated, because it is possible that particular
positive laws are unjust and morally ought to be disobeyed.
He argues that at some point, the violation of rule of law principles
become so pervasive and serious that we are no longer dealing with a
system under the rule of law but rather with arbitrary government or
some mode of regulating behaviour.
The inner morality of law requires functioning institutions to implement,
interpret, and enforce the provisions of the law. Rules of obligations that
are not brought down to each in that way do not count as a legal ystem.
Assessing Fuller’s Inner Morality
He avoids the key problem of traditional natural theory. He does not try
to show that every unjust rule of positive law is legally nullified by the
higher authority of natural law.
o He focuses on particular laws one by one, but rather, on the
kind of system by which the ruling authorities in a country seek
to regulate and control society.
His claim that a system of law always imposes a prima facie obligation
is problematic. The rules of a system that fully abides by Fuller’s inner
morality can be as unjust and dehumanizing as the regime of the Nazis.
Fuller argues that the inner morality of law puts significant constraints
on a government bent on evildoing and injustice. Those who commit evil
and injustice typically do not want others to know about it and do not
want to be restricted by rules and regulations.
We are expecting too much from the rule of law if we think that it can
ground a prima faci moral obligation to obey any law, no matter how
oppressive or unjust, as long as the law in question is part of a system
that generally conforms to the principles of legality.
Law and Social Purpose
Fuller claims that positive law and morality are connected in another
way, providing an additional moral basis to be faithful to the positive law.
There are then social purposes that lie behind the rules of positive law.
Fuller says that the rules should be interpreted so as to promote those
social purposes. Doing so would promote the good of society:
something morality commends us to do.
Critics of Fuller point out that interpreting laws in terms of their
underlying social purposes does not necessarily promote what is
morally good, simply because social purposes can be grossly immoral
or unjust.
DWORKIN’S INTERPRETIVE THEORY
Rules and Principles: The Idea of Fit
Dworkin believes that legal interpretation, when properly carried out,
requires the making of moral judgements. This does not mean that rules
of positive law will be declared invalid when they are judged to be
immoral or unjust.
For Dworkin, the law includes more than those rules that are explicitly
adopted as authoritative by the political community. Such rules can be
ground in statutory codes, judicial decisions, and other official
documents.
But, it is a mistake to stop with the explicit rules in considering what
belongs to the law.
How does one determine which are the best moral principles that can
be seen as lying beind the rules explicitly adopted by the moral
community? Dworkin’s answer: one must judge the decree to “fit”
between some proposed principle and the rules.
Fitting the Fourth Amendment: Privacy
The Role of Morality
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 Dworkin’ solution is to look to morality: the privacy principle on which
legal decisions should be made is one, from among those that fit the
explicit legal rules, that is morally best.
For Dworkin, then, the law consists of the rules explicitly adopted by the
political community plus the best principles that fit those rules. Best here
means morally best.
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 consists of
rules the community has authoritatively decided to adopted plus the
best moral principles that fit those rules.
The Challenge of Skepticism
Difference between External and Internal Skepticism
LEGAL POSITIVISM THEORY: OVERVIEW
AUSTIN’S THEORY OF LAW
HART: LAW AS PRIMARY AND SECOND RULES
*Refer to other readings
SUMMARY: NATURAL LAW VERSUS POSITIVISM
The dividing line between positivism and natural law theory runs
right through the concept of legal obligation.
o Positivists insist on negative answers to these questions,
arguing that the ideas of law and legal obligation and should be
explained in terms of power, coercion, control, and/or rules but
not in terms of moral right and wrong.
o Natural law thinkers insist on affirmative answers, arguing that
the ideas of power, coercion, control, and rules cannot
adequately explain the nature of legal obligation: moral right
and wrong are ingredients.
B. LLOYD’S “THE IDEA OF LAW” (CHAPTER 7)**
C. BRIX’S “NATURAL LAW THEORY” (IN PATTERSON’S A COMPANION TO
PHILOSOPHY OF LAW AND LEGAL THEORY)
In legal theory, “natural law” can be placed into one of two broad
groups: (1) traditional natural theory; and (2) modern natural theory.
o The two types of approaches are by no means contradictory or
inconsistent, but they reflect sets of theoretical concerns
sufficiently different that it is rare to find writers contributing to
both.
TRADITIONAL NATURAL THEORY
Grounded on the idea that there are standards against which legal
norms can be compared [and sometimes] found wanting—the standards
is what is often articulated as “a higher law.”
o What this means is that, there are law-like standards that
have been stated in or can be derived from divine
revelation, religious texts, a careful study of human
nature, or consideration of nature.
o Two views: (1) Not everything enacted is binding morally; and
(2) Law has a moral weight.
WHAT IS TRADITIONAL NATURAL THEORY? [It] (1) offers
arguments for the existence of a “higher law;” (2) elaborations of
its content, and (3) analyses of what consequences follow from the
existence of a “higher law.”
CICERO
Formulated one of the best known Natural Law positions
st
Wrote in 1 century BCE; Strongly influenced by the works of the Greek
Stoic philosophers
Offered the following characterization of natural law:
True law is right reason in agreement with nature; it is of universal
application, unchanging and everlasting; it summons to duty by its
commands, and averts from wrongdoing by its prohibitions. And it
does not lay its commands or prohibitions upon good men in vain,
though neither have any effect on the wicked. It is a sin to try to alter
this law, nor is it allowable to attempt to repeal any part of it, and it is
impossible to abolish it entirely. We cannot be freed from its obligations
by senate or people, and we need not look outside ourselves for an
expounder or interpreter of it. And there will not be different laws at
Rome and at Athens, or different laws now and in the future, but one
eternal and unchangeable law will be valid for all nations and all
times, and there will be one master and ruler, that is, God, over us all,
for he is the author of this law, its promulgator, and its enforcing judge.
Whoever is disobedient is fleeing from himself and denying his human
nature, and by reason of this very fact he will suffer the worst penalties,
even if he escapes what is commonly considered punishment. (Cicero,
1928 , Republic III.xxii.33, at 211)
KEY POINTS: (1) Natural law is unchanging over time and does not
differ in different societies; (2) Every person has access to the
standards of this higher law by use of reason; & (3) Only just laws really
deserve the name ‘law’ (as in the very definition of the term ‘law ’ there
inheres the idea and principle of choosing what is just and true).
o Ambiguity regarding the reference of “natural” in “natural law ”
Not clear whether standards were “natural” 1. because they
derived from “human nature” (or, our “essence” or “purpose ”);
2. because they were accessible by our natural faculties (that
is, by human reason or conscience), 3. because they derived
from or were expressed in nature (or, in the physical world
about us)
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 o Morality and law Connection between these standards and
divine commands
AQUINAS
Most influential writer within the traditional approach to natural law;
th
Wrote in the 13 century
o Context of his work on law: Part of a larger theological project
that offered that a systematic and moral political system
FOUR DIFFERENT KINDS OF LAW:
1. ETERNAL LAW
2. NATURAL LAW
3. DIVINE LAW
4. HUMAN (POSITIVE) LAW
POSITIVE LAW (or, genuine or just law): Derived from natural law;
Has different aspects—
o [Like] logical deduction: Natural law sometimes dictates
what natural law should be; while natural law leaves room for
human choice.
o “Determination”* of general principles (*Determination not
in a sense of ‘finding out’ but of making specific concrete)
o Positive laws that are just “have the power of binding in
conscience.”
o A just law is one that is consistent with the requirements
of natural law.
Criteria: (1) “ordered to the common good;” (2)
lawgiver has not exceeded its authority; & and (3)
law’s burdens are imposed on citizens fairly
LEX INIUSTA NON EST LEX: “An unjust law is not law.” (*Not towards
good of the person, but towards the common good)
o “Every human law has just so much of the nature of law, as it is
derived from the law of nature. But if in any point it deflects
from the law of nature, it is no longer a law but a perversion of
law.”
o “[Unjust laws] are acts of violence rather than laws; because…
a law that is not just, seems to be no law at all.”
What does it mean to say that an apparently valid law is “not law,”
“a perversion of law,” or “an act of violence rather than a law ”?
o Two ways: (1) An immoral law is not valid law at all (But, a
critique of such view is that we must not confuse questions of
power with questions of validity.); and (2) Unjust laws are not
laws “in the fullest sense.”
o The latter point to the fact that, it does not carry the same
moral force or offer the same reasons for action as laws
consistent with “ higher law. ”
A citizen, according to Aquinas, is not bound to obey “a law which
imposes an unjust burden on its subjects” if the law “can be
resisted without scandal or greater harm. ”
NATURAL LAW IN EARLY MODERN EUROPE
Discussions about natural law were tied in with other issues:
assertions about natural law were often the basis of or part of the
argument for “natural rights ” (referred to as, human rights”), which
essentially are became a discussion for individual rights that included
rights against the state and served as limitations on government.
Groundwork for International Law was also laid.
Some prominent theories: Grotius and Pufendorf; Approach would
further be developed by the “social contract” theories of Hobbes, Locke,
and Rousseau.
o Grotius: “[N]atural law, the higher law against which the
actions of nations, lawmakers, and citizens could be judged,
did not require the existence of God for its validity.”
Separation of natural law from a divine being
Divine command, purpose, will, or wisdom
“Requirements of reason”
o What the law is What the law ought to be
JOHN FINNIS
His work is an explication and application of Aquinas’s views An
application to ethical questions, but with special attention to the
problems of social theory in general and analytical jurisprudence in
particular.
According to Finnis, there are a number of distinct but equally
valuable intrinsic goods (that is, things one values for their own
sake), which he calls “basic goods.”
o Basic goods: (1) life (and health), (2) knowledge, (3) play, (4)
aesthetic experience, (5) sociability (friendship), (6) practical
reasonableness, and (7) religion.
But, the difference between right and wrong cannot be drawn at
the level of basic goods. At this level, we are merely distinguishing
between the intelligible and unintelligible.
Finnis describes the basic goods he identifies, and other
principles identified in his moral theory, as “self – evident.”
o What it means for a (true) proposition to be “self - evident ” is
that it cannot be derived from some more foundational
proposition; thus, “ self - evident ” is here the opposite of
syllogistically demonstrable.
Because there are a variety of basic goods, with no hierarchy or
priority among them, there must be principles to guide choice
when alternative courses of conduct promote different goods.
Morality offers a basis for rejecting certain available choices, but there
will often remain more than one equally legitimate choice (again, there
is a contrast with most utilitarian theories, under which there would
always be a “ best ” choice).
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 For Finnis, the move from the basic goods to moral choices occurs
through a series of intermediate principles, which Finnis calls “the
basic requirements of practical reasonableness.”
o i.e., prescription that one may never choose to destroy,
damage, or impede a basic good regardless of the benefit one
believes will come from doing so.
Law, for Finnis, enters the picture as a way of obtaining certain
some goods – social goods that require the coordination of many
people – that could not be obtained (easily or at all) without law,
and it also enters as a way of making it easier to obtain other
goods.
Doing legal theory, one should not take the perspective of those
who merely accept the law as valid (Hart), but that rather, the
theory should assume the perspective of those who accept the law
as binding because they believe that valid legal rules
(presumptively) create moral obligations.
o This reveals a difference between a legal positivist ’s
insistence on doing theory in a morally neutral way and the
Natural Law theorist’s assertion that moral evaluation is an
integral part of proper description and analysis.
MODERN NATURAL THEORY
Focuses more narrowly on the proper understanding of law as a
social institution or a social practice.
Arises as responses to legal positivism, and the way legal
positivists portrayed traditional natural law positions.
LON FULLER
Rejected what he saw as legal positivism’s distorted view of law as
a “one-way projection of authority”: the government gives orders
and the citizens obey.
o According to Fuller, this missed the need for cooperation and
reciprocal obligations between officials and citizens for a legal
system to work.
Law as “the enterprise of subjecting human conduct to the
governance of rules”
o A form of guiding people; a particular means to an end; and a
particular kind of tool
Offered, in place of legal positivism’s analysis of law based on
power, orders, and obedience, an analysis based on the “internal
morality” of law.
The internal morality of law consists of a series of requirements
which Fuller asserted that a system of rules must meet – or at least
substantially meet – if that system was to be called “law. ”
o EIGHT REQUIREMENTS:
1. Laws should be general;
2. They should be promulgated, that citizens might know the
standards to which they are being held;
3. Retroactive rulemaking and application should be
minimized;
4. Laws should be understandable;
5. They should not be contradictory;
6. Laws should not require conduct beyond the abilities of
those affected;
7. They should remain relatively constant through time; &
8. There should be a congruence between the laws as
announced and their actual administration.
Fuller chafed at the dismissal of his set of requirements as “merely
procedural”
o This was an argument frequently made by critics that his
“principles of legality” were amoral solutions to problems of
efficiency, such that one could just as easily speak of “the
internal morality of poisoning.”
o Key arguments (against such claims): (1) Following the
principles of legality is itself a moral good; (2), the fact that a
government follows those principles may indicate that it is
committed to morally good actions; and (3) that following such
principles may hinder or restrict base actions.
MAIN POINTS:
1. A value judgment about the system described is part of the
way we use the word “law”
2. There is analytic value to seeing law as a particular kind of
social guidance, which is to be contrasted with other forms of
social guidance,
3. That which can be more or less effective according to how well
it meets certain criteria – would not be undermined by pointing
out legal systems which were substantively unjust but which
seemed to do well on questions of procedural justice.
Fuller becomes problematic insofar as the tendency is to fixate on the
question of when a rule or a system of social control merits the label
“law” or “legal.”
o It is probably preferable to bypass questions of labeling and line -
drawing, to face directly whatever further substantive issues may
be present.
RONALD DWORKIN
Developed a sophisticated alternative to legal positivism.
o Occasionally referred to his approach as a natural law theory,
and it is clearly on the natural law side of the theoretical divide
set by the Hart - Fuller debate.
Dworkin challenged a particular view of legal positivism, a view that
saw law as being comprised entirely of rules, and judges as having
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discretion in their decision - making where the dispute before them was
not covered by any existing rule.
Offered an alternative vision of law, in which the resources for
resolving disputes “according to law” were more numerous and
varied, and the process of determining what the law required in a
particular case more subtle.
According to Dworkin, along with rules, legal systems also contain
principles. As contrasted with rules, principles do not act in an all -
or - nothing fashion. Rather, they have “weight,” they favor one
result or another. Thus, legal principles are moral propositions that
are grounded (exemplified, quoted, or somehow supported by)
past official acts.
o Still, there is a separation of law and morality.
o Judges are told to decide cases based not on whatever
principles (critical) morality might require, but rather, based on
a different and perhaps inconsistent set of principles: those
cited in, or implicit in, past official actions.
Two tenets of Dworkin’s early writings: (1) law contained
principles as well as rules; and (2) that for nearly all legal questions,
there was a unique right answer.
Later on, offered “an interpretive approach” to law.
o “Legal claims are interpretive judgments and therefore
combine backward – and forward - looking elements; they
interpret contemporary legal practice as an unfolding
narrative.”
o Both law (as a practice) and legal theory are best
understood as processes of “constructive interpretation.”
He believes that constructive interpretation is also the
proper approach to artistic and literary works, and his
writings frequently compare the role of a judge with
that of a literary critic. Both the applicability of
constructive interpretation to art and literature and the
treatment of legal interpretation as analogous to
artistic or literary interpretation, are controversial
claims.
o Constructive interpretation is both an imposition of form
upon the object being interpreted (in the sense that the form
is not immediately apparent in the object) and a derivation of
form from it (in the sense that the interpreter is constrained by
the object of interpretation, and not free to impose any form
she might choose).
“Standard” response to his work Judges and legal theorists should
not look at law through “rose-colored glasses,” making it “the best it can
be”; rather, they should describe law “as it is.”
MAIN POINT:
o Law “as it is,” law as objective or noncontroversial, is only
the collection of past offi cial decisions by judges and
legislators (which Dworkin refers to as the “pre -
interpretive data, ” that which is subject to the process of
constructive interpretation). However, even collectively,
these individual decisions and actions cannot offer an
answer to a current legal question until some order is
imposed upon them. And the ordering involves a choice, a
moral - political choice among tenable interpretations of
those past decisions and actions.
OTHER MODERN WRITERS (Moore, L. Weinreb, E. Weinreb, Beyleveld and
Brownsword, and Murphy)
CONCLUSION
TWO GROUPS: (1) “traditional natural law theory ” sets out a moral
theory (or an approach to moral theory) in which one can better analyze
how to think about and act on legal matters; and (2) “ modern natural
law theory ” argues that one cannot properly understand or describe the
law without moral evaluation.
D. COLEMAN AND LEITER’S “LEGAL POSITIVISM” (IN PATTERSON’S A
COMPANION TO PHILOSOPHY OF LAW AND LEGAL THEORY)
Legal positivism: One of the 2 great traditions in legal philosophy
TWO CENTRAL BELIEFS: (1) Social thesis (What counts as law in
any particular society is fundamentally a matter of social fact or
convention; and (2) Separability thesis (There is no necessary
connection between law and morality.)
JURISPRUDENCE AND SUBJECT MATTER
Jurisprudence aims to give a satisfactory analysis of the uses to which
the concept of “law” is put in various social practices.
o Analysis must account for two features of concept: (1) the
criteria of legality (or, the sense that all of the norms in
society - moral, aesthetic, social - only some subset are norms
of law; and (2) the normativity (or, authority) of law (or, our
sense that “legal” norms provide agents with special reasons
for acting, reasons they would not have if the norm were not a
legal ” one.)
Distinction between positivists and natural lawyers
DWORKIN
o Moral principles can be legally binding in virtue of the fact that
they express an appropriate dimension of justice or fairness.
o Distinction between the conditions of legality (or legal validity)
and the meaning of a valid legal rule
Dworkin does not claim that the validity of legal
principles depends on their morality, but he does
believe that in interpreting the meaning of valid
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 legal rules it is often necessary to consult moral
principles.
o Distinctive feature of Dworkin’s jurisprudence: Focus on
adjudication
Central figure is judge (as supposed to the central
figure for positivists: the lawmaker or legislator)
LEGALITY AND AUTHORITY
Hart: There is a difference between the way the law is and the way it
ought to be.
o This is expressed by the account of legality given by the social
and separability theses.
o The resulting account of the criteria of legality has differing
interpretations “Restrictive” construal and “Inclusive”
construal
Positivists do not deny that there may be a great deal of overlap
between a community’s law and its morality, both its positive and critical
morality.
Accounts of legality are often driven by accounts of authority.
(Positivism has often proved attractive because of natural law theory’s
failure to account adequately for either.)
Practical Authority: A person or institution whose directives provide
individuals with a reason for acting (in compliance with those dictates)
Natural law: For in order to be law, a norm must be required by morality.
Morality has authority, in the sense that the fact that a norm is a
requirement of morality gives agents a (perhaps overriding) reason to
comply with it. If morality has authority, and legal norms are necessarily
moral, then law has authority too.
o Critique of the Positivists is that—“[it] makes law’s authority
redundant on morality’s.
POSITIVISM: AUSTIN VS. HART
Austin’s WILL OR COMMAND THEORY OF LAW
o Law is the order of a “sovereign” backed by a threat of sanction
AUTHORITY OF LAW
in the event of non-compliance.
o A norm is law, then, only if it is the command of a
sovereign. Legality, on this account, is determined by its
source – that is, the will or command of a sovereign – not
its substantive merits. The criteria of legality are matters
of fact, not value.
HART
o Critiqued Austin, saying that by treating the sovereign as a
person, Austin’s account is unable to explain other salient
features of law, namely the fact that legal rules remain valid or
binding even after a sovereign dies or is otherwise
disempowered, even, in other words, when that particular
person no longer enjoys the habit of obedience. It fails as well
to explain the fact that the commands of a new “sovereign” can
be law even though she has not yet secured a habit of
obedience.
o Reformulated Austin’s conception of the sovereign so that the
sovereign is not a person but an office.
The authority to legislate vests in the office, not in
the person, except insofar as one is a legitimate
occupant of the office. But the office is an institution,
and institutions are created by rules. The rules that
create offices are plainly not orders backed by
threats. Instead, they are rules that empower or
authorize certain actions by public officials.
o Not all laws are liberty limiting in the way in which Austin
envisions; rather, some laws expand liberty. They are
enabling, or what Hart calls power conferring – expanding
rather than contracting the scope of individual freedom by
giving legal effect or force to personal choices. Some rules
confer power on private individuals while those that create
offices confer power and authorize public persons.
o For Hart, law consists of rules of two distinct types: primary
rules that either limit or expand liberty; and secondary rules
that are about the primary rules.
Hart distinguishes among three different kinds of
secondary rules: those that create a power to
legislate; others that create a power to adjudicate;
and finally a rule of recognition.
o In place of Austin’s reliance on sanctions as a source of
law’s authority, Hart emphasizes the idea that law consists
in rules, in particular, social rules.
There is a difference between what people do as a
rule and what they do when they are following a rule.
Social rules, in short, are then normative in a way that
habits of obedience are not.
Two distinct views about the role of social rules in explaining the
authority of law:
1. Law is authoritative because it consists in social rules.
2. The rule of recognition is a social rule whose authority depends
on its being accepted from the internal point of view by the
relevant officials - judges.
Problems with the second view: (1) It does not follow that rules valid
under the rule of recognition are authoritative in virtue of their validity
under the rule of recognition; and (2) The authority of the rule of
recognition does not derive from it being a social rule – that is, it being
accepted from an internal point of view.
Two components of social rules: (1) Description of what individuals
do as a rule; and (2) their being accepted from an internal point of view.
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 Convergent behavior, not acceptance from the internal point of
view, is the key to understanding the authority of the rule of
recognition.
What becomes, then, of Hart’s notion of the internal point of view?
1. What Hart offers as an analysis of a social rule as in fact a
stipulative definition of the term: a norm cannot be a
social rule unless it is accepted from the internal point of
view. In that case, the internal point of view is a necessary
condition of a norm’s being a social rule.
2. Acceptance, then, from the internal point of view may be
both a necessary condition of a normative practice
constituting a social rule and a reliable indicator that a
practice or rule is normative. But, it is not this fact about
social rules that explains their normative force. Instead,
convergence does the normative work.
JUDICIAL DISCRETION
Dworkin explains Hart’s position in terms of four basic tenets: (1) the
rule of recognition; (2) the model of rules, that is, the claim that all
legally binding norms are rules; (3) the separability thesis; and (4)
judicial discretion, that is, the constrained authority of judges to appeal
to standards other than those legally binding on them in order to resolve
controversial legal disputes.
Legal rules are binding with respect to their core instances: no rational,
competent speaker of the language could deny that the rule applies in
such cases.
With respect to the penumbra of a concept, rational disagreement
is possible and the law dictates no particular answer. The judge
must exercise discretion and, in effect, legislate meaning. In doing
so, judges typically appeal to moral principles and social policies
that are not themselves binding legal standards.
Dworkin agrees with Hart that judges will appeal to moral principles to
resolve disputes. Unlike Hart, however, he argues that such norms are
not extralegal standards, but are instead binding legal standards.
o Evidence? The fact that, judges regard them so.
o They are part of the law because they express a dimension of
justice or fairness suitable to law.
CENTRAL POINT: Positivism can allow moral principles to be legally
binding standards provided their being law depends on their satisfying a
condition in the rule of recognition.
o It is not their morality as such that makes them law; rather, it is
the fact that they meet the demands set forth in the rule of
recognition.
o Allowing moral principles to be legally binding in this way saves
both the separability thesis and the rule of recognition.
The separability thesis is saved because what makes
even moral principles binding law is that they are
recognized as such under a rule of recognition, not
their truth. The rule of recognition is saved just
because the legality of all norms – including moral
principles – depends on establishing that they satisfy
the demands set forth in the rule of recognition.
Implication? Increasing the set of binding legal standards by
incorporating controversial moral principles into law may actually
increase the extent of discretion, owing to problems of vagueness and
controversy.
INCORPORATIONISM AND LEGALITY
Incorporationism depends on a rule of recognition incorporating
morality into law.
Dworkin denies that legal positivists can be incorporationists in
this sense, and offers four different objections to a positivist’s
attempt to incorporate morality into law through the rule of
recognition.
1. A rule of recognition that includes reference to moral principles will
violate the separability thesis.
o COUNTERARGUMENT: The claim that there is no
necessary connection between law and morality. It does
not preclude a rule of recognition from incorporating
morality into law. It only precludes positivism from claiming
that law must necessarily
incorporate morality into law.
2. Positivism is committed to the idea that what makes something law
depends on its history or the form and manner of its enactment
(meaning, legality, for a positivist, cannot depend on the
substantive value of a norm or the truth of a moral principle), which
incorporationism violates.
o COUNTERARGUMENT: Incorporationism does not entail
the absence of a pedigree or noncontentful criterion of
legality.
3. Positivism is committed to the rule of recognition serving an
epistemic function (meaning, by consulting it, individuals can
determine for themselves what the law is and what it requires of
them), which incorporationism runs contrary to.
o COUNTERARGUMENT: We can distinguish between two
different epistemic functions the rule of recognition might
be asked to serve: validation and identification. Legal
positivism is committed to the rule of recognition’s serving
a validation function. Nothing in incorporationism threatens
the rule of recognition’s ability to serve that function.
4. Positivism is committed to the rule of recognition being a social
rule, but as it is, incorporationism renders the rule of recognition
incapable of being a social rule.
o COUNTERARGUMENT: A social rule requires a pattern of
convergent behavior. A rule of recognition that
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 incorporates morality will generate disagreement because
officials will disagree about its requirements or
instantiations. Nevertheless,
their behavior converges in the requisite way.
RAZ’ THEORY OF AUTHORITY
What we ought to do depends on the reasons that apply to us – reasons
that would ground or justify one or another course of conduct. We can
suppose that there are good moral reasons and good prudential
reasons, and that the balance of reasons will, typically, settle for us
what we ought to do.
o To say that the law is a practical authority is to say that it
provides an independent and different reason for acting
that figures in the decisions of agents as to what they
ought to do.
o Relationship between the reasons that law supplies and those
that already apply the demands of right reason.
o THREE POSSIBILITIES: (1) the reasons law supplies might
be generally unrelated to the demands of right reason, thus
giving us more reasons to think about; (2) they might, in
general, conflict with the demands of right reason; or (3) they
might generally coincide with those demands.
NORMAL JUSTIFICATION THESIS: In order for law to be a practical
authority, it must be the case that for each agent for whom law is an
authority, that agent would more fully or satisfactorily comply with the
demands of right reason that apply to him by acting on the basis of the
reasons law supplies than he would do otherwise
Right reason NOT utilitarian, but coordinative function
There are times when each of us would do better following the law than
we would acting directly on the basis of right reason. Typically, these
are cases involving problems of coordination or uncertainty. The claim
to legal authority is based on the thought that the reasons law provides
replace the reasons that otherwise apply to us because acting on the
former will enable us more fully to comply with the demands of the latter
than we will by acting on the basis of them directly.
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 they believe that the behavior of
others reflects an understanding of what the appropriate standards of
validity are.
Thus, while the account given so far draws a distinction between
the authority of the rule of recognition and the authority of rules
subordinate to it, the same general account is at work in both.
CONCLUSION
As a rule, positivists have focused primarily on issues pertaining
to the concepts of legality and authority. Central to positivism’s
analysis of legality is the institutional nature of law; central to its
analysis of authority is the idea of efficacy.
o Individual positivists, as the foregoing has made clear,
differ significantly on how the details of legality and
authority are best explained.
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