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Legal Theory Midterms Reviewer: A. Philosophy of Law
Legal Theory Midterms Reviewer: A. Philosophy of Law
I. Introduction
A. Philosophy of Law
Pound
Legal Philosophy or the theorizing about law serves to stabilize and destabilize. Such function has
remained over time and the difference lies only in its application (content).
Eagleton
• Law serves to stabilize or destabilize
• The basic framework of legal philosophy has “theory” serving as an “explanation”.
• Theory:
◦ an analysis (a particular framework).
◦ why we do things
• Meta-theory:
◦ an analysis of analytical processes – trying to understand the explanation itself
◦ why are we theorizing that way
◦ everyone exercises in meta-theory, which results to a questioning of society
• Legal Theory/Legal Philosophy
◦ Law is a body of practice and rules to describe behavior, and an explanation of society.
◦ Legal theorists therefore attempt to explain society
◦ a meta-theoretical exercise providing an explanation of human behavior.
◦ analyzing a law is analyzing a theory.
• Communication and History
◦ As people communicate through giving “meaning” to words, language indicates the
existence of behavior. Such communicative behavior is theoretical because of the process of
“giving meanings”.
◦ The same process is done in searching for “history”. We study the past to assign meaning to
events and facts. Hence, to “theorize about law” is to look at the history of law.
B. History
C. Nature of Law
Principal Characteristics of Legal System which Appears in our Body of Law (Raz)
• Prospective, Open and Clear
• Stability/Longer-lasting rule
• Making of particular laws must be guided by open, stable, clear and general rules
• Independent of judiciary must be guaranteed
• Principle of natural justice must be observed
• Courts should have review powers over implementation of other principles
• Courts should be easily accessible
• Discretion of the crime-preventing agencies should not be allowed to pervert the law
Context
• Aquinas was trying to justify the relationship between law and religious institutions.
• Historical background: the religious institutions were the real leaders as they even decided who
would be king
• There is a need to link the system of law with the supernatural/divine
Definition of Law
• an ordinance of reason for the common good made by someone who has care of the community,
and promulgated
• a binding rule and measure of acts.
• Reasonable
• a particular determination by human reason for the good of society
Purpose of Law
• happiness – salvation, eternal life and to be saved from the pyres of Hell
Classification of Law
1. Eternal Law
◦ laws of the universe that determine existence
◦ how things work (or the conception of things not subject to time)
2. Natural Law
◦ laws of the universe apprehended/understood through reason
◦ a reflection of how the universe works
◦ (ex. man’s tendency to bond together into communities, etc)
◦ the participation of eternal law in the rational creature
3. Human Law
◦ devised for particular human circumstances
◦ an application of natural law made by humans
◦ must be consistent with natural and eternal law
◦ a man has a natural aptitude for virtue but the perfection of virtue must be acquired by man
by means of some kind of “training” (ex. admonitions)
4. Divine Law
◦ law given by God
◦ This is the standard of morality
◦ This is told/determined by religious institutions (the ones who know God)
◦ Divine law is needed because human judgment is uncertain. Different people have different
judgments while Divine law cannot err.
Definition of Law
• criteria for right judgment (for assessing good/bad, right/wrong, desirable/undesirable)
◦ These criteria are normative (or binding) prior to human choice (not set by collective
choosing or positing)
◦ These criteria are acknowledged through reason
• a set of directives to guide conduct towards common good
Purpose of Law
• acquiring the basic goods:
◦ life
◦ knowledge (for its own sake)
◦ friendship & sociability
◦ play (for its own sake)
◦ aesthetic experiences
◦ practical reasonableness
◦ spirituality
• these basic goods are common/shared by the community
Legal Validity
• practical reasonableness
◦ to know what is best for one’s self and to determine nature of common good
◦ a balancing act which requires that people rationally consider the pursuit of all basic goods
against intrinsic value of each of these goods
◦ a moral process of weighing goods for society
Criticism
• Not everyone would have goals that follow the common good
• It is based on a number of unprovable assumptions such as:
◦ We can't really tell if people have a conception of common good
◦ We don’t know if people know the difference between a common good and a personal good
◦ It's possible that we think people are pursuing a common good when they are only out there
for their own personal desires
Summary
There are basic goods that people use as considerations for guiding their behavior. One of these
goods, practical reasonableness, shapes how you choose which goods to prioritize first, what methods
you use to achieve those goods, etc. Finnis’ idea of morality comes from all the requirements of
practical reasonableness he enumerates. However, in Finnis’ theory of Natural Law, he says that one
should not just consider the basic goods, but also the common good in general. Law’s purpose is then to
strike balance between the basic goods and the common good; law and authority provide coordination
so each member of the community can effectively pursue the basic goods for themselves.
Focus
• Legislated rules or “statutes” (the what is)
◦ As opposed to natural law’s morality as visibly manifested in “behavior”, an unspecified,
not-enacted standard (the what ought to be)
• Natural law believes that what ought to be cannot come from what is
Definition of Law
• a command from the sovereign with force and sanctions
◦ command
▪ an expression/directive of superior to inferior, for obedience due to fear of sanction
▪ an expression of a wish/a signification of a desire of the sovereign
◦ sovereign
▪ his authority is based on hereditary succession (monarchy)
◦ if there are no force or sanctions then the command is not law
• a “command of a sovereign” is different from other probable laws because such command is
issued by particular people in society
• A society with no foundations of legal system is a pre-legal system, where there is dependence
on coercion.
Purpose of Law
• so that people may predict when they will incur punishment or sanction
What Makes Law Valid
• enactment of the command by the superior through promulgation (a specific process where
statement must be made)
Context
• fall of monarchy and rise of democracy, which is based on certain inherent rights of men
Definition of Law
• a union of primary and secondary rules
• it is not merely a command requiring sanctions
• examples of some laws are without sanctions:
◦ those that establish institutional structures and frameworks (ex. Administrative Law and
Constitution)
◦ Procedural Laws (ex. Rules of Court)
◦ Those which grant rights/duties or limit powers (ex. Bill of Rights)
• the use of other non-coercive means such as rights and obligations marked a shift from a pre-
legal to a legal system
• “Where there is law, human conduct is made in some sense non-optional or obligatory”
Primary Rules
• imposes duties and obligations (seen in Austin's theory)
• those which state certain actions humans are required to do or abstain from, whether they wish
to or not.
• Governs behavior
• Such obligations are obeyed either under threat of coercion/sanction or accepted voluntarily for
its own good
Secondary Rules
• confers powers (not present in Austin's theory)
• provide that humans may by doing things to introduce new primary rules
• involves the creation/variation of duties or obligations
• superior to primary rules
Purpose of Law
• 1) to help people predict when their actions will be followed by hostile reactions
(penalties/sanctions); and 2) to give reason/justification for such hostile reaction (application of
sanctions)
On Jurisprudence
• The questions “what is law” and “what makes law valid” are insufficient
• Jurisprudence enters and becomes relevant when the law is not enough or when a question
cannot be answered by existing laws
• Jurisprudence answers the question “which law is applicable”
• The legal profession trains three particular skills, all of which are objective (something that can
be observed and proven by evidence):
1. analysis to extract legal doctrines
2. summarizing facts
3. applying doctrines to the facts
• But these three conventional methods/skills do not answer the why's of jurisprudential
questions:
◦ ex. Why should it be equitable?
◦ ex. Why should one interpretation be chosen over the other?
Criticism of Austin
• While Austin’s theory is that the sovereign gives a general command obeyed because of fear of
sanction; the reality is that 1) a complex society has pluralistic powers (meaning: power does
not come from sovereign only); and 2) Austin does not account for “obligation vs. obliged” (See
Hart’s What is the purpose of law) and Austin assumes that law amounts to force (One may
obey law simply to conform with others who follow the law – that is, without fear of sanctions)
Criticism of Hart
• Hart’s model (legal positivism in general) cannot accommodate the important role played by
principles (standards which are not rules)
• Hart claims that in hard cases where the rule is indeterminate, the judges make laws and do not
merely apply. But the truth is that there are legal principles are internal to law and such
principles are considered in interpreting which law applies to a hard case.
◦ These principles are standards internal to law which specifies when a judge may reverse a
previous decision. This discretion to overturn a decision is only on a “judgment-based
sense” and not “strong discretion” as to amount to “making law” instead of applying law.
Such standards/principles must be weighed against other principles
Definition of Rules
• enacted standards that are always followed
• not necessarily legislated (ex. customary laws)
• applicable in an all-or-nothing way
• don't have weights, they either apply or do not
• example: A valid will (re: property) must have 3 witnesses.
Definition of Principles
• other sources of standards that are not necessarily enacted
• gives guidance but does not provide a strong discretion
• the beliefs of society
• may arise from or contain rules
• justification for adopting new rules
• need not determine the outcome of a case even when applicable
◦ may be weighed against each other
◦ multiple principles may be applied together
Definition of Policies
• standards aimed at a particular goal/purpose decided upon by society
• may contain principles