What is Philosophy?

Philosophy is a discipline that requires students to make a break with what is

called "normal." Unlike other disciplines, philosophy questions the opinions
we are exposed to on a daily basis from parents, teachers, clergy, experts of
every stripe, journalists and politicians. This questioning however is not
merely for the sake of questioning, since philosophy is deeply rooted in the
events of human life.
The subject matter of philosophy is varied and far-reaching. To provide you
with an in-road to the field it is perhaps simplest to say that philosophy
concerns fundamental issues that are important to human beings, and seeks
to find the strongest arguments in connection with those topics.
The fundamental issues that Philosophy attempts to deal with can perhaps
best be illustrated by the following list of areas of Philosophy that are of wide
interest.

Logic

Logic helps us to sort out the good arguments from the bad, at least in so far
as we are concerned with the reasoning involved. There are techniques of
reasoning that students can learn in order to determine whether the
conclusion of an argument logically follows from the premises that are given.

Logic can be studied either in depth, by taking a course devoted just to that
topic, or in less depth as preparation for evaluating arguments that arise in
other areas of Philosophy.

Ethics

Ethics is the study of how we ought to live. For example, we may find
ourselves having to decide what is best for another-perhaps a member of our
family who is in hospital. Should this person be taken off life-support systems
and allowed to die? This question leads us to more general questions about
the value of human life and of life in general.

Ethics may be further subdivided into more specific branches such as

biomedical ethics, business ethics, and environmental ethics. Questions in
these fields include the following: should animals be used for experimental
purposes? Should human genes be altered? What duties of confidentiality
exist between patients and physicians? Is honesty really the best policy for
doing business? Do corporations have an obligation to preserve the
environment? Should the bottom line be the exclusive concern of managers,
or should their decisions be tempered by ethical considerations? Is so, what
are those ethical considerations and how can they be justified? Do we owe an
obligation to future generations to not leave the world to them as one large
garbage heap?

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Social and Political Philosophy

Are there any good arguments which justify the exercise of power of a State
over its citizens? How much interference with the freedom of individuals can
be justified? What is Justice? Is the State justified in its power to redistribute
wealth so as to help those who are least well off? It may surprise you to know
that there are strong arguments on both sides of these issues.

Metaphysics

Questions in metaphysics, also known as ontology, focus on the nature of

reality and what it means to exist. As the ancients asked, "How is it that there
is something rather than nothing?" This might seem quite abstract, but
actually the question has its roots in our experience of the day-to-day. For
example, when a loved one dies, it is not out of the ordinary to ask why that
death should have occurred, or whether or not existence has a purpose in the
face of what seems hopelessly irrational.

Epistemology

Epistemology is a somewhat peculiar field of knowledge in that it is basically

the study of knowledge itself. What does it mean to know something? What, if
anything, separates knowledge from mere opinion? Are human beings
capable of knowing anything at all?

Philosophy of Religion

Several arguments have been advanced over the years which attempt to
establish that God exists. Modern analysis of those arguments seeks to
improve upon some of the weaknesses perceived in the traditional arguments
and to advance additional considerations in order to try to establish the
existence of God. Are these new proofs successful? What problems does the
existence of evil cause for those who believe in a good God?

Aesthetics

Sometimes we find ourselves in the presence of something beautiful and we

will wonder why we desire to possess it, recreate it, or express it to others.
Such wondering stands under that branch of philosophy called aesthetics,
which is the study of the nature of art and the experience of the beautiful.
Some of its questions are: Why do we find something terrifying nevertheless
attractive and beautiful? What is the art (beauty) of Tragedy? All the
questions above are quite at home in the realm of philosophy-a discipline
which, since ancient times, reveals a kind of thinking that disconnects us
from the "normal," making us strangers in a world we generally take for
granted.

Philosophy of Law

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Legal philosophy investigates such topics as the nature of law and legal
reasoning, the meaning of legal concepts, and the moral justification of legal
practices such as punishment and limitation of liberty. A few of the questions
which might be investigated in a class in legal philosophy include the
following:

Are legal obligations just a kind of moral obligation?

What considerations should guide judges when they throw out
legislation which conflicts with the Charter of Rights and Freedoms?
Is civil disobedience ever justified? What counts as civil disobedience?
What is the proper border between civil and criminal law, where one
involved financial compensation and the other potentially involves
prison?
Why should the State have inherent powers?
Why is the accused presumed innocent until proven guilty?
Why is the President immune from suit?
Why can’t the State be sued without its consent?
Why or why should not the death penalty be imposed?
Why should the writ of amparo be issued? Is the writ of habeas corpus
insufficient?
Why should the writ of habeas data be issued?

Legal Philosophy does not content itself with the answer “because the LAW
SO PROVIDES.”

Philosophers of law are concerned with providing a general philosophical

analysis of law and legal institutions. Issues in legal philosophy range from
abstract conceptual questions about the nature of law and legal systems to
normative questions about the relation between law and morality and the
justification for various legal institutions. Topics in legal philosophy tend to be
more abstract than related topics in political philosophy and applied ethics.
For example, whereas the question of how properly to interpret the
Constitution belongs to democratic theory and hence falls under the heading
of political philosophy, the analysis of legal interpretation falls under the
heading of legal philosophy. Likewise, whereas the question of whether
capital punishment is morally permissible falls under the heading of applied
ethics, the question of whether the institution of punishment can be justified
falls under the heading of legal philosophy. Topics in legal philosophy fall
roughly into three categories: analytic jurisprudence, normative
jurisprudence, and critical theories of law.

Philosophy of law makes use of philosophy in order to carry out overall

examinations of the law, jurisprudence and legal institutions. It deals with
fundamental issues such as the definition of law, the requirements for legal
legitimacy and the correlation of the law and morality. It analyzes a broad
spectrum of topics, from the abstract and theoretical issues concerning the
characteristics of the legal system to directive issues concerning the place of
morality in the legal realm.

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One topic of primary importance is regarding the definition of law. In an
attempt to best deal with the question, three main factions have emerged:
(1) the natural law theory (laws should be reflective of the laws of nature,
(2) legal positivism (society should dictate what norms become laws) and
(3) legal realism (laws should be based on applications not theories).

Of concern to the legal philosopher are the more theoretical and abstract
topics regarding the law, thus distinguishing them from their counterparts in
applied ethics and political philosophy. The areas of study are typically
categorized under three headings: normative jurisprudence, analytic
jurisprudence and critical theories of law.

1. Analytic Jurisprudence
The principal objective of analytic jurisprudence has traditionally been to
provide an account of what distinguishes law as a system of norms from
other systems of norms, such as ethical norms. As John Austin describes the
project, analytic jurisprudence seeks "the essence or nature which is common
to all laws that are properly so called" (Austin 1995, p. 11). Accordingly,
analytic jurisprudence is concerned with providing necessary and sufficient
conditions for the existence of law that distinguishes law from non-law in
every possible world.
While this task is usually interpreted as an attempt to analyze the concepts of
law and legal system, there is some confusion as to both the value and
character of conceptual analysis in philosophy of law. As Brian Leiter (1998)
points out, philosophy of law is one of the few philosophical disciplines that
takes conceptual analysis as its principal concern; most other areas in
philosophy have taken a naturalistic turn, incorporating the tools and
methods of the sciences. To clarify the role of conceptual analysis in law,
Brian Bix (1995) distinguishes a number of different purposes that can be
served by conceptual claims: (1) to track linguistic usage; (2) to stipulate
meanings; (3) to explain what is important or essential about a class of
objects; and (4) to establish an evaluative test for the concept-word. Bix
takes conceptual analysis in law to be primarily concerned with (3) and (4).
In any event, conceptual analysis of law remains an important, if
controversial, project in contemporary legal theory. Conceptual theories of
law can be divided into two main headings: those that affirm there is a
conceptual relation between law and morality and those that deny that there
is such a relation. Nevertheless, Ronald Dworkin's view is often characterized
as a third theory partly because it is not clear where he stands on the
question of whether there is a conceptual relation between law and morality.

a. Natural Law Theory

All forms of natural law theory subscribe to the Overlap Thesis, which asserts
that there is a necessary relation between the concepts of law and morality.
According to this view, then, the concept of law cannot be fully articulated

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without some reference to moral notions. Though the Overlap Thesis may
seem unambiguous, there are a number of different ways in which it can be
interpreted.
The strongest form of the Overlap Thesis underlies the classical naturalism of
Aquinas and Blackstone. As Blackstone describes the thesis, "This law of
nature, being co-equal with mankind and dictated by God himself, is of
course superior in obligation to any other. It is binding over all the globe, in
all countries, and at all times: no human laws are of any validity, if contrary
to this; and such of them as are valid derive all their force, and all their
authority, mediately or immediately, from this original" (1979, p. 41). In this
passage, Blackstone articulates the two claims that constitute the theoretical
core of classical naturalism: 1) there can be no legally valid standards that
conflict with the natural law; and 2) all valid laws derive what force and
authority they have from the natural law. On this view, to paraphrase
Augustine, an unjust law is no law at all.
Related to Blackstone's classical naturalism is the neo-naturalism of John
Finnis (1980). Finnis believes that the naturalism of Aquinas and Blackstone
should not be construed as a conceptual account of the existence conditions
for law. According to Finnis (see also Bix, 1996), the classical naturalists were
not concerned with giving a conceptual account of legal validity; rather they
were concerned with explaining the moral force of law: "the principles of
natural law explain the obligatory force (in the fullest sense of 'obligation') of
positive laws, even when those laws cannot be deduced from those
principles" (Finnis 1980, pp. 23-24). On Finnis's view of the Overlap Thesis,
the essential function of law is to provide a justification for state coercion.
Accordingly, an unjust law can be legally valid, but cannot provide an
adequate justification for use of the state coercive power and is hence not
obligatory in the fullest sense; thus, an unjust law fails to realize the moral
ideals implicit in the concept of law. An unjust law, on this view, is legally
binding, but is not fully law.
Lon Fuller (1964) rejects the idea that there are necessary moral constraints
on the content of law. On Fuller's view, law is necessarily subject to a
procedural morality consisting of eight principles: (P1) the rules must be
expressed in general terms; (P2) the rules must be publicly promulgated; (P3)
the rules must be prospective in effect; (P4) the rules must be expressed in
understandable terms; (P5) the rules must be consistent with one another;
(P6) the rules must not require conduct beyond the powers of the affected
parties; (P7) the rules must not be changed so frequently that the subject
cannot rely on them; and (P8) the rules must be administered in a manner
consistent with their wording.
On Fuller's view, no system of rules that fails minimally to satisfy these
principles of legality can achieve law's essential purpose of achieving social
order through the use of rules that guide behavior. A system of rules that fails
to satisfy (P2) or (P4), for example, cannot guide behavior because people
will not be able to determine what the rules require. Accordingly, Fuller
concludes that his eight principles are "internal" to law in the sense that they
are built into the existence conditions for law: "A total failure in any one of
these eight directions does not simply result in a bad system of law; it results

5
in something that is not properly called a legal system at all" (1964, p. 39).

b. Legal Positivism

Opposed to all forms of naturalism is legal positivism, which is roughly

constituted by three theoretical commitments: the Social Fact Thesis, the
Conventionality Thesis, and the Separability Thesis. The Social Fact Thesis
(which is also known as the Pedigree Thesis) asserts that it is a necessary
truth that legal validity is ultimately a function of certain kinds of social facts.
The Conventionality Thesis emphasizes law's conventional nature, claiming
that the social facts giving rise to legal validity are authoritative in virtue of
some kind of social convention. The Separability Thesis, at the most general
level, simply denies naturalism's Overlap Thesis; according to the Separability
Thesis, there is no conceptual overlap between the notions of law and
morality.

i. The Conventionality Thesis

According to the Conventionality Thesis, it is a conceptual truth about law
that legal validity can ultimately be explained in terms of criteria that are
authoritative in virtue of some kind of social convention. Thus, for example,
H.L.A. Hart (1996) believes the criteria of legal validity are contained in a rule
of recognition that sets forth rules for creating, changing, and adjudicating
law. On Hart's view, the rule of recognition is authoritative in virtue of a
convention among officials to regard its criteria as standards that govern
their behavior as officials. While Joseph Raz does not appear to endorse
Hart's view about a master rule of recognition containing the criteria of
validity, he also believes the validity criteria are authoritative only in virtue of
a convention among officials.

ii. The Social Fact Thesis

The Social Fact Thesis asserts that legal validity is a function of certain social
facts. Borrowing heavily from Jeremy Bentham, John Austin (1995) argues
that the principal distinguishing feature of a legal system is the presence of a
sovereign who is habitually obeyed by most people in the society, but not in
the habit of obeying any determinate human superior. On Austin's view, a
rule R is legally valid (i.e., is a law) in a society S if and only if R is
commanded by the sovereign in S and is backed up with the threat of a
sanction. The relevant social fact that confers validity, on Austin's view, is
promulgation by a sovereign willing to impose a sanction for noncompliance.
Hart takes a different view of the Social Fact Thesis. Hart believes that
Austin's theory accounts, at most, for one kind of rule: primary rules that
require or prohibit certain kinds of behavior. On Hart's view, Austin

6
overlooked the presence of other primary rules that confer upon citizens the
power to create, modify, and extinguish rights and obligations in other
persons. As Hart points out, the rules governing the creation of contracts and
wills cannot plausibly be characterized as restrictions on freedom that are
backed by the threat of a sanction.
Most importantly, however, Hart argues Austin overlooks the existence of
secondary meta-rules that have as their subject matter the primary rules
themselves and distinguish full-blown legal systems from primitive systems of
law:
[Secondary rules] may all be said to be on a different level from the primary
rules, for they are all about such rules; in the sense that while primary rules
are concerned with the actions that individuals must or must not do, these
secondary rules are all concerned with the primary rules themselves. They
specify the way in which the primary rules may be conclusively ascertained,
introduced, eliminated, varied, and the fact of their violation conclusively
determined (Hart 1994, p. 92).
Hart distinguishes three types of secondary rules that mark the transition
from primitive forms of law to full-blown legal systems: (1) the rule of
recognition, which "specif[ies] some feature or features possession of which
by a suggested rule is taken as a conclusive affirmative indication that it is a
rule of the group to be supported by the social pressure it exerts" (Hart 1994,
p. 92); (2) the rule of change, which enables a society to add, remove, and
modify valid rules; and (3) the rule of adjudication, which provides a
mechanism for determining whether a valid rule has been violated. On Hart's
view, then, every society with a full-blown legal system necessarily has a rule
of recognition that articulates criteria for legal validity that include provisions
for making, changing and adjudicating law. Law is, to use Hart's famous
phrase, "the union of primary and secondary rules" (Hart 1994, p. 107).
According to Hart's view of the Social Fact Thesis, then, a proposition P is
legally valid in a society S if and only if it satisfies the criteria of validity
contained in a rule of recognition that is binding in S. As we have seen, the
Conventionality Thesis implies that a rule of recognition is binding in S only if
there is a social convention among officials to treat it as defining standards of
official behavior. Thus, on Hart's view, "[the] rules of recognition specifying
the criteria of legal validity and its rules of change and adjudication must be
effectively accepted as common public standards of official behaviour by its
officials" (Hart 1994, p. 113).

iii. The Separability Thesis

The final thesis comprising the foundation of legal positivism is the
Separability Thesis. In its most general form, the Separability Thesis asserts
that law and morality are conceptually distinct. This abstract formulation can
be interpreted in a number of ways. For example, Klaus F¸þer (1996)
interprets it as making a meta-level claim that the definition of law must be
entirely free of moral notions. This interpretation implies that any reference
to moral considerations in defining the related notions of law, legal validity,
and legal system is inconsistent with the Separability Thesis.

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More commonly, the Separability Thesis is interpreted as making only an
object-level claim about the existence conditions for legal validity. As Hart
describes it, the Separability Thesis is no more than the "simple contention
that it is in no sense a necessary truth that laws reproduce or satisfy certain
demands of morality, though in fact they have often done so" (Hart 1994, pp.
181-82). Insofar as the object-level interpretation of the Separability Thesis
denies it is a necessary truth that there are moral constraints on legal
validity, it implies the existence of a possible legal system in which there are
no moral constraints on legal validity.
Though all positivists agree there are possible legal systems without moral
constraints on legal validity, there are conflicting views on whether there are
possible legal systems with such constraints. According to inclusive
positivism (also known as incorporationism and soft positivism), it is possible
for a society's rule of recognition to incorporate moral constraints on the
content of law. Prominent inclusive positivists include Jules Coleman and Hart,
who maintains that "the rule of recognition may incorporate as criteria of
legal validity conformity with moral principles or substantive values ... such
as the Sixteenth or Nineteenth Amendments to the United States Constitution
respecting the establishment of religion or abridgements of the right to vote"
(Hart 1994, p. 250).
In contrast, exclusive positivism (also called hard positivism) denies that a
legal system can incorporate moral constraints on legal validity. Exclusive
positivists like Raz (1979) subscribe to the Source Thesis, according to which
the existence and content of law can always be determined by reference to
its sources without recourse to moral argument. On this view, the sources of
law include both the circumstances of its promulgation and relevant
interpretative materials, such as court cases involving its application.

c. Ronald Dworkin's Third Theory

Ronald Dworkin rejects positivism's Social Fact Thesis on the ground that
there are some legal standards the authority of which cannot be explained in
terms of social facts. In deciding hard cases, for example, judges often invoke
moral principles that Dworkin believes do not derive their legal authority from
the social criteria of legality contained in a rule of recognition (Dworkin 1977,
p. 40). Nevertheless, since judges are bound to consider such principles when
relevant, they must be characterized as law. Thus, Dworkin concludes, "if we
treat principles as law we must reject the positivists' first tenet, that the law
of a community is distinguished from other social standards by some test in
the form of a master rule" (Dworkin 1977, p. 44).
Dworkin believes adjudication is and should be interpretive: "judges should
decide hard cases by interpreting the political structure of their community in
the following, perhaps special way: by trying to find the best justification they
can find, in principles of political morality, for the structure as a whole, from
the most profound constitutional rules and arrangements to the details of, for

8
example, the private law of tort or contract" (Dworkin 1982, p. 165). There
are, then, two elements of a successful interpretation. First, since an
interpretation is successful insofar as it justifies the particular practices of a
particular society, the interpretation must fit with those practices in the sense
that it coheres with existing legal materials defining the practices. Second,
since an interpretation provides a moral justification for those practices, it
must present them in the best possible moral light. Thus, Dworkin argues, a
judge should strive to interpret a case in roughly the following way:

A thoughtful judge might establish for himself, for example, a rough

"threshold" of fit which any interpretation of data must meet in order to be
"acceptable" on the dimension of fit, and then suppose that if more than one
interpretation of some part of the law meets this threshold, the choice among
these should be made, not through further and more precise comparisons
between the two along that dimension, but by choosing the interpretation
which is "substantively" better, that is, which better promotes the political
ideals he thinks correct (Dworkin 1982, p. 171).
Accordingly, on Dworkin's view, the legal authority of a binding principle
derives from the contribution it makes to the best moral justification for a
society's legal practices considered as a whole. Thus, a legal principle
maximally contributes to such a justification if and only if it satisfies two
conditions: (1) the principle coheres with existing legal materials; and (2) the
principle is the most morally attractive standard that satisfies (1). The correct
legal principle is the one that makes the law the moral best it can be.
In later writings, Dworkin expands the scope of his "constructivist" view
beyond adjudication to encompass the realm of legal theory. Dworkin
distinguishes conversational interpretation from artistic/creative
interpretation and argues that the task of interpreting a social practice is
more like artistic interpretation:

The most familiar occasion of interpretation Ö is conversation. We interpret

the sounds or marks another person makes in order to decide what he has
saidÖ. Artistic interpretation is yet another: critics interpret poems and plays
and paintings in order to defend some view of their meaning or theme or
point. The form of interpretation we are studying-the interpretation of a social
practice-is like artistic interpretation in this way: both aim to interpret
something created by people as an entity distinct from them, rather than
what people say, as in conversational interpretation" (Dworkin 1986, p. 50).
Artistic interpretation, like judicial interpretation, is constrained by the
dimensions of fit and justification: "constructive interpretation is a matter of
imposing purpose on an object or practice in order to make of it the best
possible example of the form or genre to which it is taken to belong" (Dworkin
1986, p. 52).
On Dworkin's view, the point of any general theory of law is to interpret a
very complex set of related social practices that are "created by people as an
entity distinct from them"; for this reason, Dworkin believes the project of
putting together a general theory of law is inherently constructivist:

9
General theories of law Ö must be abstract because they aim to interpret the
main point and structure of legal practice, not some particular part or
department of it. But for all their abstraction, they are constructive
interpretations: they try to show legal practice as a whole in its best light, to
achieve equilibrium between legal practice as they find it and the best
justification of that practice. So no firm line divides jurisprudence from
adjudication or any other aspect of legal practice (Dworkin 1986, p. 90).
Indeed, so tight is the relation between jurisprudence and adjudication,
according to Dworkin, that jurisprudence is no more than the most general
part of adjudication; thus, Dworkin concludes, "any judge's opinion is itself a
piece of legal philosophy" (Dworkin 1986, p. 90).
Accordingly, Dworkin rejects not only positivism's Social Fact Thesis, but also
what he takes to be its underlying presuppositions about legal theory. Hart
distinguishes two perspectives from which a set of legal practices can be
understood. A legal practice can be understood from the "internal" point of
view of the person who accepts that practice as providing legitimate guides
to conduct, as well as from the "external" point of view of the observer who
wishes to understand the practice but does not accept it as being
authoritative or legitimate.
Hart understands his theory of law to be both descriptive and general in the
sense that it provides an account of fundamental features common to all
legal systems-which presupposes a point of view that is external to all legal
systems. For this reason, he regards his project as "a radically different
enterprise from Dworkin's conception of legal theory (or 'jurisprudence' as he
often terms it) as in part evaluative and justificatory and as 'addressed to a
particular legal culture', which is usually the theorist's own and in Dworkin's
case is that of Anglo-American law" (Hart 1994, p. 240).
These remarks show Hart believes Dworkin's theoretical objectives are
fundamentally different from those of positivism, which, as a theory of
analytic jurisprudence, is largely concerned with conceptual analysis. For his
part, Dworkin conceives his work as conceptual but not in the same sense
that Hart regards his work:

We all-at least all lawyers-share a concept of law and of legal right, and we
contest different conceptions of that concept. Positivism defends a particular
conception, and I have tried to defend a competing conception. We disagree
about what legal rights are in much the same way as we philosophers who
argue about justice disagree about what justice is. I concentrate on the
details of a particular legal system with which I am especially familiar, not
simply to show that positivism provides a poor account of that system, but to
show that positivism provides a poor conception of the concept of a legal
right (Dworkin 1977, 351-52).
These differences between Hart and Dworkin have led many legal
philosophers, most recently Bix (1996), to suspect that they are not really
taking inconsistent positions at all. Accordingly, there remains an issue as to
whether Dworkin's work should be construed as falling under the rubric of
analytic jurisprudence.

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2. Normative Jurisprudence

a. Freedom and the Limits of Legitimate Law

Laws limit human autonomy by restricting freedom. Criminal laws, for
example, remove certain behaviors from the range of behavioral options by
penalizing them with imprisonment and, in some cases, death. Likewise, civil
laws require people to take certain precautions not to injure others and to
honor their contracts. Given that human autonomy deserves prima facie
moral respect, the question arises as to what are the limits of the state's
legitimate authority to restrict the freedom of its citizens.
John Stuart Mill provides the classic liberal answer in the form of the harm
principle: "[T]he sole end for which mankind are warranted, individually or
collectively, in interfering with the liberty of action of any of their number is
self-protection. The only purpose for which power can rightfully be exercised
over any member of a civilised community against his will is to prevent harm
to others. His own good, either physical or moral, is not a sufficient warrantÖ.
Over himself, over his own body and mind, the individual is sovereign" (Mill
1906, pp. 12-13). While Mill left the notion of harm underdeveloped, he is
most frequently taken to mean only physical harms and more extreme forms
of psychological harm.
Though Mill's view-or something like it-enjoys currency among the public, it
has generated considerable controversy among philosophers of law and
political philosophers. Many philosophers believe that Mill understates the
limits of legitimate state authority over the individual, claiming that law may
be used to enforce morality, to protect the individual from herself, and in
some cases to protect individuals from offensive behavior.

i. Legal Moralism
Legal moralism is the view that the law can legitimately be used to prohibit
behaviors that conflict with society's collective moral judgments even when
those behaviors do not result in physical or psychological harm to others.
According to this view, a person's freedom can legitimately be restricted
simply because it conflicts with society's collective morality; thus, legal
moralism implies that it is permissible for the state to use its coercive power
to enforce society's collective morality.
The most famous legal moralist is Patrick Devlin, who argues that a shared
morality is essential to the existence of a society:
[I]f men and women try to create a society in which there is no fundamental
agreement about good and evil they will fail; if, having based it on common
agreement, the agreement goes, the society will disintegrate. For society is
not something that is kept together physically; it is held by the invisible
bonds of common thought. If the bonds were too far relaxed the members
would drift apart. A common morality is part of the bondage. The bondage is
part of the price of society; and mankind, which needs society, must pay its
price. (Devlin 1965, p. 10).

11
Insofar as human beings cannot lead a meaningful existence outside of
society, it follows, on Devlin's view, that the law can be used to preserve the
shared morality as a means of preserving society itself.
H.L.A. Hart (1963) points out that Devlin overstates the extent to which
preservation of a shared morality is necessary to the continuing existence of
a society. Devlin attempts to conclude from the necessity of a shared social
morality that it is permissible for the state to legislate sexual morality (in
particular, to legislate against same-sex sexual relations), but Hart argues it
is implausible to think that "deviation from accepted sexual morality, even by
adults in private, is something which, like treason, threatens the existence of
society" (Hart 1963, p. 50). While enforcement of certain social norms
protecting life, safety, and property are likely essential to the existence of a
society, a society can survive a diversity of behavior in many other areas of
moral concern-as is evidenced by the controversies in the U.S. surrounding
abortion and homosexuality.

ii. Legal Paternalism

Legal paternalism is the view that it is permissible for the state to legislate
against what Mill calls self-regarding actions when necessary to prevent
individuals from inflicting physical or severe emotional harm on themselves.
As Gerald Dworkin describes it, a paternalist interference is an "interference
with a person's liberty of action justified by reasons referring exclusively to
the welfare, good, happiness, needs, interests or values of the person being
coerced" (G. Dworkin 1972, p. 65). Thus, for example, a law requiring use of a
helmet when riding a motorcycle is a paternalistic interference insofar as it is
justified by concerns for the safety of the rider.
Dworkin argues that Mill's view that a person "cannot rightfully be compelled
to do or forbear because it will be better for him" (Mill 1906, p. 13) precludes
paternalistic legislation to which fully rational individuals would agree.
According to Dworkin, there are goods, such as health and education, that
any rational person needs to pursue her own good-no matter how that good
is conceived. Thus, Dworkin concludes, the attainment of these basic goods
can legitimately be promoted in certain circumstances by using the state's
coercive force.
Dworkin offers a hypothetical consent justification for his limited legal
paternalism. On his view, there are a number of different situations in which
fully rational adults would consent to paternalistic restrictions on freedom. For
example, Dworkin believes a fully rational adult would consent to
paternalistic restrictions to protect her from making decisions that are "far-
reaching, potentially dangerous and irreversible" (G. Dworkin 1972, p. 80).
Nevertheless, he argues that there are limits to legitimate paternalism: (1)
the state must show that the behavior governed by the proposed restriction
involves the sort of harm that a rational person would want to avoid; (2) on
the calculations of a fully rational person, the potential harm outweighs the
benefits of the relevant behavior; and (3) the proposed restriction is the least
restrictive alternative for protecting against the harm.

iii. The Offense Principle

12
Joel Feinberg believes the harm principle does not provide sufficient
protection against the wrongful behaviors of others, as it is inconsistent with
many criminal prohibitions we take for granted as being justified. If the only
legitimate use of the state coercive force is to protect people from harm
caused by others, then statutes prohibiting public sex are impermissible
because public sex might be offensive but it does not cause harm (in the
Millian sense) to others.
Accordingly, Feinberg argues the harm principle must be augmented by the
offense principle, which he defines as follows: "It is always a good reason in
support of a proposed criminal prohibition that it would probably be an
effective way of preventing serious offense (as opposed to injury or harm) to
persons other than the actor, and that it is probably a necessary means to
that end" (Feinberg 1985). By 'offense,' Feinberg intends a subjective and
objective element: the subjective element consists in the experience of an
unpleasant mental state (e.g., shame, disgust, anxiety, embarrassment); the
objective element consists in the existence of a wrongful cause of such a
mental state.

b. The Obligation to Obey Law

Natural law critics of positivism (e.g., Fuller 1958) frequently complain that if
positivism is correct, there cannot be a moral obligation to obey the law qua
law. As Feinberg (1979) puts the point:
The positivist account of legal validity Ö is hard to reconcile with the [claim] Ö
that valid law as such, no matter what its content, deserves our respect and
general fidelity. Even if valid law is bad law, we have some obligation to obey
it simply because it is law. But how can this be so if a law's validity has
nothing to do with its content?
The idea is this: if what is essential to law is just that there exist specified
recipes for making law, then there cannot be a moral obligation to obey a rule
simply because it is the law.
Contemporary positivists, for the most part, accept the idea that positivism is
inconsistent with an obligation to obey law qua law (cf. Himma 1998), but
argue that the mere status of a norm as law cannot give rise to any moral
obligation to obey that norm. While there might be a moral obligation to obey
a particular law because of its moral content (e.g., laws prohibiting murder)
or because it solves a coordination problem (e.g., laws requiring people to
drive on the right side of the road), the mere fact that a rule is law does not
provide a moral reason for doing what the law requires.
Indeed, arguments for the existence of even a prima facie obligation to obey
law (i.e., an obligation that can be outweighed by competing obligations)
have largely been unsuccessful. Arguments in favor of an obligation to obey
the law roughly fall into four categories: (1) arguments from gratitude; (2)
arguments from fair play; (3) arguments from implied consent; and (4)
arguments from general utility.
The argument from gratitude begins with the observation that all persons,
even those who are worst off, derive some benefit from the state's

13
enforcement of the law. On this view, a person who accepts benefits from
another person thereby incurs a duty of gratitude towards the benefactor.
And the only plausible way to discharge this duty towards the government is
to obey its laws. Nevertheless, as M.B.E. Smith points out (1973, p. 953), "if
someone confers benefits on me without any consideration of whether I want
them, and if he does this in order to advance some purpose other than
promotion of my particular welfare, I have no obligation to be grateful
towards him." Since the state does not give citizens a choice with respect to
such benefits, the mere enjoyment of them cannot give rise to a duty of
gratitude.
John Rawls (1964) argues that there is a moral obligation to obey law qua law
in societies in which there is a mutually beneficial and just scheme of social
cooperation. What gives rise to a moral obligation to obey law qua law in
such societies is a duty of fair play: fairness requires obedience of persons
who intentionally accept the benefits made available in a society organized
around a just scheme of mutually beneficial cooperation. There are a couple
of problems here. First, Rawls's argument does not establish the existence of
a content-independent obligation to obey law; the obligation arises only in
those societies that institutionalize a just scheme of social cooperation.
Second, even in such societies, citizens are not presented with a genuine
option to refuse those benefits. For example, I cannot avoid the benefits of
laws ensuring clean air. But accepting benefits one is not in a position to
refuse cannot give rise to an obligation of fair play.
The argument from consent grounds an obligation to obey law on some sort
of implied promise. As is readily evident, we can voluntarily assume
obligations by consenting to them or making a promise. Of course, most
citizens never explicitly promise or consent to obey the laws; for this reason,
proponents of this argument attempt to infer consent from such
considerations as continued residence and acceptance of benefits from the
state. Nevertheless, acceptance of benefits one cannot decline no more
implies consent to obey law than it does duties of fair play or gratitude.
Moreover, the prohibitive difficulties associated with emigration preclude an
inference of consent from continued residence.
Finally, the argument from general utility grounds the duty to obey the law in
the consequences of universal disobedience. Since, according to this
argument, the consequences of general disobedience would be catastrophic,
it is wrong for any individual to disobey the law; for no person may disobey
the law unless everyone may do so. In response, Smith points out that this
strategy of argument leads to absurdities: "We will have to maintain, for
example, that there is a prima facie obligation not to eat dinner at five
o'clock, for if everyone did so, certain essential services could not be
maintained" (Smith 1973, p. 966).

c. The Justification of Punishment

Punishment is unique among putatively legitimate acts in that its point is to

inflict discomfort on the recipient; an act that is incapable of causing a person

14
minimal discomfort cannot be characterized as a punishment. In most
contexts, the commission of an act for the purpose of inflicting discomfort is
morally problematic because of its resemblance to torture. For this reason,
institutional punishment requires a moral justification sufficient to distinguish
it from other practices of purposely inflicting discomfort on other people.
Justifications for punishment typically take five forms: (1) retributive; (2)
deterrence; (3) preventive; (4) rehabilitative; and (5) restitutionary. According
to the retributive justification, what justifies punishing a person is that she
committed an offense that deserves the punishment. On this view, it is
morally appropriate that a person who has committed a wrongful act should
suffer in proportion to the magnitude of her wrongdoing. The problem,
however, is that the mere fact that someone is deserving of punishment does
not imply it is morally permissible for the state to administer punishment; it
would be wrong for me, for example, to punish someone else's child even
though her behavior might deserve it.
In contrast to the retributivist theories that look back to a person's prior
wrongful act as justification for punishment, utilitarian theories look forward
to the beneficial consequences of punishing a person. There are three main
lines of utilitarian reasoning. According to the deterrence justification,
punishment of a wrongdoer is justified by the socially beneficial effects that it
has on other persons. On this view, punishment deters wrongdoing by
persons who would otherwise commit wrongful acts. The problem with the
deterrence theory is that it justifies punishment of one person on the strength
of the effects that it has on other persons. The idea that it is permissible to
deliberately inflict discomfort on one person because doing so may have
beneficial effects on the behavior of other persons appears inconsistent with
the Kantian principle that it is wrong to use people as mere means.
The preventive justification argues that incarcerating a person for wrongful
acts is justified insofar as it prevents that person from committing wrongful
acts against society during the period of incarceration. The rehabilitative
justification argues that punishment is justified in virtue of the effect that it
has on the moral character of the offender. Each of these justifications suffers
from the same flaw: prevention of crime and rehabilitation of the offender can
be achieved without the deliberate infliction of discomfort that constitutes
punishment. For example, prevention of crime might require detaining the
offender, but it does not require detention in an environment that is as
unpleasant as those typically found in prisons.
The restitutionary justification focuses on the effect of the offender's wrongful
act on the victim. Other theories of punishment conceptualize the wrongful
act as an offense against society; the restitutionary theory sees wrongdoing
as an offense against the victim. Thus, on this view, the principal purpose of
punishment must be to make the victim whole to the extent that this can be
done: "The point is not that the offender deserves to suffer; it is rather that
the offended party desires compensation" (Barnett 1977, p. 289).
Accordingly, a criminal convicted of wrongdoing should be sentenced to
compensate her victim in proportion to the victim's loss. The problem with
the restitutionary theory is that it fails to distinguish between compensation

15
and punishment. Compensatory objectives focus on the victim, while punitive
objectives focus on the offender.

3. Critical Theories of Law

a. Legal Realism
The legal realist movement was inspired by John Chipman Gray and Oliver
Wendall Holmes and reached its apex in the 1920s and 30s through the work
of Karl Llewellyn, Jerome Frank, and Felix Cohen. The realists eschewed the
conceptual approach of the positivists and naturalists in favor of an empirical
analysis that sought to show how practicing judges really decide cases (see
Leiter 1998). The realists were deeply skeptical of the ascendant notion that
judicial legislation is a rarity. While not entirely rejecting the idea that judges
can be constrained by rules, the realists maintained that judges create new
law through the exercise of lawmaking discretion considerably more often
than is commonly supposed. On their view, judicial decision is guided far
more frequently by political and moral intuitions about the facts of the case
(instead of by legal rules) than theories like positivism and naturalism
acknowledge.
As an historical matter, legal realism arose in response to legal formalism, a
particular model of legal reasoning that assimilates legal reasoning to
syllogistic reasoning. According to the formalist model, the legal outcome
(i.e., the holding) logically follows from the legal rule (major premise) and a
statement of the relevant facts (minor premise). Realists believe that
formalism understates judicial lawmaking abilities insofar as it represents
legal outcomes as entailed syllogistically by applicable rules and facts. For if
legal outcomes are logically implied by propositions that bind judges, it
follows that judges lack legal authority to reach conflicting outcomes.
Legal realism can roughly be characterized by the following claims: (1) the
class of available legal materials is insufficient to logically entail a unique
legal outcome in most cases worth litigating at the appellate level (the Local
Indeterminacy Thesis); (2) in such cases, judges make new law in deciding
legal disputes through the exercise of a lawmaking discretion (the Discretion
Thesis); and (3) judicial decisions in indeterminate cases are influenced by
the judge's political and moral convictions-and not by legal considerations.
Though (3) is logically independent of (1) and (2), (1) seems to imply (2):
insofar as judges decide legally indeterminate cases, they must be creating
new law.
It is worth noting the relations between legal realism, formalism, and
positivism. While formalism is often thought to be entailed by positivism, it
turns out that legal realism is not only consistent with positivism, but also
presupposes the truth of all three of positivism's core theses. Indeed, the
realist acknowledges that law is essentially the product of official activity, but
believes that judicial lawmaking occurs more frequently than is commonly
assumed. But the idea that law is essentially the product of official activity
presupposes the truth of positivism's Conventionality, Social Fact, and
Separability Theses. Though the preoccupations of the realists were empirical

16
(i.e., attempting to identify the psychological and sociological factors
influencing judicial decision-making), their implicit conceptual commitments
were decidedly positivistic in flavor.

b. Critical Legal Studies

The critical legal studies (CLS) movement attempts to expand the radical
aspects of legal realism into a Marxist critique of mainstream liberal
jurisprudence. CLS theorists believe the realists understate the extent of
indeterminacy; whereas the realists believe that indeterminacy is local in the
sense that it is confined to a certain class of cases, CLS theorists argue that
law is radically (or globally) indeterminate in the sense that the class of
available legal materials rarely, if ever, logically/causally entails a unique
outcome.
CLS theorists emphasize the role of ideology in shaping the content of the
law. On this view, the content of the law in liberal democracies necessarily
reflects "ideological struggles among social factions in which competing
conceptions of justice, goodness, and social and political life get
compromised, truncated, vitiated, and adjusted" (Altman 1986, p. 221). The
inevitable outcome of such struggles, on this view, is a profound
inconsistency permeating the deepest layers of the law. It is this pervasive
inconsistency that gives rise to radical indeterminacy in the law. For insofar
as the law is inconsistent, a judge can justify any of a number of conflicting
outcomes.
At the heart of the CLS critique of liberal jurisprudence is the idea that radical
indeterminacy is inconsistent with liberal conceptions of legitimacy. According
to these traditional liberal conceptions, the province of judges is to interpret,
and not make, the law. For, on this view, democratic ideals imply that
lawmaking must be left to legislators who, unlike appointed judges, are
accountable to the electorate. But if law is radically indeterminate, then
judges nearly always decide cases by making new law, which is inconsistent
with liberal conceptions of the legitimate sources of lawmaking authority.

c. Law and Economics

The law and economics movement argues for the value of economic analysis
in the law both as a description about how courts and legislators do behave
and as a prescription for how such officials should behave. The legal
economists, led by Richard Posner, argue that the content of many areas of
the common law can be explained in terms of its tendency to maximize
preferences:
[M]any areas of law, especially the great common law fields of property, torts,
crimes, and contracts, bear the stamp of economic reasoning. It is not a
refutation that few judicial opinions contain explicit references to economic
concepts. Often the true grounds of decision are concealed rather than
illuminated by the characteristic rhetoric of judicial opinions. Indeed, legal
education consists primarily of learning to dig beneath the rhetorical surface
to find those grounds, many of which may turn out to have an economic
character (Posner 1992, p. 23).

17
Posner subscribes to the so-called efficiency theory of the common law,
according to which "the common law is best (not perfectly) explained as a
system for maximizing the wealth of society" (Posner 1992, p. 23).
More influential than Posner's descriptive claims is his normative view that
law should strive to maximize wealth. According to Posner, the proper goal of
the statutory and common law is to promote wealth maximization, which can
best be done by facilitating the mechanisms of the free market. Posner's
normative view combines elements of utilitarian analysis with a Kantian
respect for autonomy. On the utilitarian side, markets tend to maximize
wealth and the satisfaction of preferences. In a market transaction with no
third-party effects, wealth is increased because all parties are made better off
by the transaction-otherwise there would be no incentive to consummate the
transaction-and no one is made worse off.
On the Kantian side, the law should facilitate market transactions because
market transactions best reflect autonomous judgments about the value of
individual preferences. At least ideally, individuals express and realize their
preferences through mutually consensual market transactions consummated
from positions of equal bargaining power. Thus, market transactions tend,
ideally, to be both efficient (because they tend to maximize wealth without
harmful third-party effects) and just (because all parties are consenting).

d. Outsider Jurisprudence
So-called outsider jurisprudence is concerned with providing an analysis of
the ways in which law is structured to promote the interests of white males
and to exclude females and persons of color. For example, one principal
objective of feminist jurisprudence is to show how patriarchal assumptions
have shaped the content of laws in a wide variety of areas: property,
contract, criminal law, constitutional law, and the law of civil rights.
Additionally, feminist scholars challenge traditional ideals of judicial decision-
making according to which judges decide legal disputes by applying neutral
rules in an impartial and objective fashion. Feminists have, of course, always
questioned whether it is possible for judges to achieve an objective and
impartial perspective, but now question whether the traditional model is even
desirable.
Critical race theory is likewise concerned to point up the way in which
assumptions of white supremacy have shaped the content of the law at the
expense of persons of color. Additionally, critical race theorists show how the
experience, concerns, values, and perspectives of persons of color are
systematically excluded from mainstream discourse among practicing
lawyers, judges, and legislators. Finally, such theorists attempt to show how
assumptions about race are built into most liberal theories of law.

_____________________________________________________________

I. WHY STUDY LAW AND THE PHISOPHY OF THE LAW?

18
Many of the most troubling moral and political issues that we face are
addressed in our society as legal issues. An acquaintance with the law, an
awareness of some of the more important legal decisions that have been
made in the last few years tells us more about ourselves than almost any
other institution or practice. Public debate about surrogate motherhood,
capital punishment, hate speech, euthanasia, the electoral process and
equaltiy between the sexes is waged in terms of legal principle and acted out
in our courts.
Philosophy of Law reflects the conviction that the law, when it is studied in
relation to fundamental social issues, is one of the most fascinating subjects
to which we can be exposed. It is also a subject about which most of us
already have intuitions. There is great joy (and often relief) in the discovery
that an outcome in a given case or line of reasoning adopted by a judge to
explain that outcome captures one of our own (not always fully articulated)
opinions.
Each section of Philosophy of Law is organized around a controversial issue
that raises important questions for which there are often more than one good
answer. Indeed, each segment raises more questions than it answers. This is
not intended to frustrate but to provoke thought, and to encourage anyone
who elects to pursue a career in Law to develop a clearer idea of their own
values and beliefs and to provide them with the means and the confidence to
articulate and defend those beliefs.
The Course focuses upon a number of areas that are central to criminal, civil,
and constitutional law and makes an effort to get at the principles underlying
conflicting judicial judgments in hard cases. The course also explores more
general issues: Under what conditions should a person in our society be held
responsible for his or her acts? Under what conditions may one be excused?
Suppose I simply make a mistake? Or was merely careless? Or was mentally
unstable? Is it fair to punish me for a harm I caused but did not intend? And if
I fail to commit a crime, should I be punished less severely than if I had
succeeded?
Many people have grown cynical about lawyers and the law. The course has
taught me to trust my own sense of right and wrong and helped, in turn, to
mitigate my cynicism. This does not mean that cases have always turned out
as I expected or as I might have hoped. But in those instances where a
decision has gone against my own sense of what I thought would have been
just or fair, I have been able to find in the law itself the building blocks of a
counter-argument and ways to make the case for the other side.

II. LAW AS "THE TIE THAT BINDS"

Sociologists write about the fragmentation of contemporary life and bemoan
the loss of a strong sense of community, but our laws accompanied by the
opinions delivered daily in our courts tell a different story. There is diversity. It
tends to blind us to the areas of our communality, to the ways we share a
common purpose and stand on common ground. Our legal system is just such
an area, but given the bias of the cultural presumption, we tend to see in the

19
law a reflection of ourselves that only serves to confirm the image we have of
ourselves as a diverse people.
The Estrada plunder case ending in conviction and pardon was a recent
example of this phenomenon. Following the verdict and the swift grant of
executive clemency, people saw in the outcome the reflection of a divided
society. But at a deeper, less refractive level the legal system holds a secret
that we given our fascination with surfaces conspire to keep from ourselves.
Just below the surface, at a depth not so unfathomable that it cannot be
brought to light, lies a web of value and belief so strong it could bind a people
and perhaps does. Buried within our legal system are the core values of
liberty, equality, and justice. Every single trial is a proving ground for
confirming the extent to which we share these values as well as a laboratory
for testing the scope and limit of the values themselves.
Whatever else we may think about the law, our legal system is set up to
redress wrongs and settle disputes. It seeks to establish as well as find ways
for us all of us to live together in the same place. For the system to work, our
courts cannot redress wrongs and settle disputes in any old way and our
legislative assemblies cannot promulgate just any set of rules. The decisions
of our courts must, on balance, make sense to us. For our system of laws to
work and our courts to function. they must work and function in ways that we
find credible, in ways that we believe are just and fair.
Legal theorists have debated since the time of Socrates whether justice and
fairness are a part of the law or merely a moral judgment of it. I have come to
the conclusion that justice and fairness are part and parcel of the law not
separate or distinct from it. Legislators should pass laws that are fair and
judges should render decisions that are just.
As you work your way through the readings for the course and as you discuss
and debate various legal matters among yourselves, I am willing to bet that
once arguments have been set forth both for and against a position, the
argument that will tip the balance for you in one direction or the other, the
argument that will sway you to take one side or another, will be the one that
seems the fairest. In many of the cases we shall discusss, you shalll be asked
what your decision would be if you were the judge. I am willing to bet that as
a judge your decision in any given case will most likely be guided in the end
by your sense of justice.
You will be amazed, however, to discover, as I was amazed when I first began
to teach the Philosophy of Law, how much of our law already embodies a
sense of justice and fair play in the rights it grants to defendants and the
constitutional protections it provides for us as citizens. You will be struck, too,
I hope, by how much legal thought about, say, what makes something a
crime, or under what circumstances we hold someone responsible for
committing a crime, or what excuses and justifications someone charged with
criminal wrongdoing might successively offer in order to be found not guilty,
is already shot through with considerations of justice and by notions of what
it is to be a person.
As you shalll see, the criminal law not only cares about what a person does
but what a person thinks. The sort of person the criminal law identifies and

20
promotes is also one who can make up his or her mind, who formulates
intentions and makes plans, and acts on those intentions and plans. Our
criminal laws commit us to a conception of a person who is capable of taking
responsibility for what he or she does. The study of law is, then, a study not
only of what we think is just, but of what kind of person we are capable of
being as well as can reasonably expect one another to be and become.
The sense of justice and personhood that informs our laws is also that sense
in which we are one nation, a united, rather than a divided, people. In a
democratic society with no shared religion and no shared ethnic identity, our
legal system is the tie that binds. But that system is more than just a set of
abstract rules, it is also as I have tried to bring out here, a system of value
and belief.
In a society such as ours, it is, therefore, crucial that judges render decisions
that do not seem arbitrary or partial, but seem just to most of us as well as
reflective of our shared understanding of what it means to be a person. If too
many legal decisions begin to seem unconvincing, unreasonable or less than
fully fair, the society shall certainly become unglued and all talk of
fragmentation and a lack of a sense of community shall become true and we
shall, to put it dramatically but by no means melodramatically, cease to exist
as a people, to borrow Araham Lincoln's famous phrase

III. DEFINING CRIME

In an introduction to a course on the Philosophy of Law, it might be helpful to
say something at the outset - right "off the bat" - about the nature of law and,
more particularly, about crime. What, after all, is a crime? Indeed, since you
will be asked on numerous occasions to say whether you think a crime has
been committed, it might seem especially useful to start with a definition of
crime. But it is not quite so easy to define crime.
To illustrate how difficult it is to give a definition of crime, take, for example,
murder and theft. What follows comes from Leo Katz in his Bad Acts and
Guilty Minds, pp. 90-92:
"Give a definition of theft. Simple? Easy? How about theft is a crime against
property? But so is arson. How about all involuntary transfers of property? But
so is the foreclosure of a mortgage. How about all involuntary transfers of
property, not pursuant to prior agreement, to rule out foreclosures? But so
are robbery, blackmail, and the passing of bad checks. Below you will find
three examples of theft. Can you give a definition of theft that captures the
features that each of the examples have in common?

THEFT 1

Alice ties her horse to a pole and heads into the local saloon to buy herself a
stiff drink. John sneaks up, unties Alice's horse, and rides off into the sunset.

THEFT 2

21
John who is Alice's trustee, secretly sells Alice's land to Henry and keeps the
money from the sale.

THEFT 3

John, who is oil prospecting, persuades Alice to sell him a valuable oil
property which she happens to own in Texas, for a pittance by telling her
(falsely) that a soon-to-be built highway will lower the value of her property
dramatically.
"What do all three cases have in common? Can you say? Do not try for too
long? No one, as far as I know, has been able to do it. No one. Presented with
this difficulty, the common law has viewed each as a separate offense. Theft
1 has been called larceny: the trespassory taking and carrying away of
personal property of another with intent to steal it. Theft 2 has been called
embezzlement: the fraudulent conversion of the property of another by one
who is already in lawful possession of it. And Theft 3 has been called false
pretenses: a false representation of a material present or past fact which
causes the victim to pass title to his property to the wrongdoer who knows his
presentation to be false and intends thereby to defraud the victim. Whew!
"So there, we've done it. Three kinds of crimes, three forms of theft, defined.
Happy? Should we be? But now consider the following:
Commonwealth v. OMalley (1867)
Bridget McDonald was a servant in a family residing in Boston and received
from her employer, in payment of wages, thirty-eight dollars in bankbills. The
defendant, Martin O'Malley, asked her to let him take the money and count it,
she not being able to read or write. O'Malley counted it several times in her
presence, and then, upon, her asking that he should return it to her, refused
to do so. Bridget McDonald then locked the door to keep him from escaping
but O'Malley threatened to jump out of the window or burn the bank-bills,
inconsequence of which McDonald opened the door, and O'Malley went off
with the money. O'Malley was arrested and charged with larceny. The trial
court, however, believed that he was guilty of embezzlement, not larceny,
since O'Malley had not actually taken the property away from McDonald but
merely kept it against her will. The trial court acquitted O'Malley. The state
then prosecuted O'Malley for embezzlement and a jury convicted him. On
appeal, however, O'Malley argued that a jury could not possibly convict him
of embezzlement, since what he had done clearly amounted to larceny. The
appeals court agreed: When a person turns her property over to another for
some brief, limited task, such as the counting of bank-bills, that person has
never actually divested herself of her possession. Absconding with something
that belongs to somebody else and that is in somebody else's possession is
larceny, not embezzlement. The court acquitted O'Malley of the
embezzlement charge and, as far as the records show, O'Malley was not tried
again and so went free. (97 Mass. 584-85, 1867).
"To avoid these sorts of injustices, most state legislatures have consolidated
larceny, embezzlement, and false pretenses into a single offense. What
offense is that. Its called theft. So we are back to square one. How do we
define theft? Since no attribute can be found that all three offenses have on

22
common, some legislatures have defined theft as larceny-embezzlement-false
pretenses. But how does this solve anything? Under the common law,
fairness requires that a defendant be told whether he or she is charged with
larceny, or embezzlement, or false pretenses in order to prepare the
appropriate defense and that he or she be convicted only if a jury can agree
upon which of the three was committed. Doesn't fairness require that a
defendant be told with which kind of theft he or she is charged? If so, we're
again without a definition of theft.

IV. WHAT'S WRONG WITH DEFINITIONS?

The problems we face trying to define "theft" or "crime" or "the law" may be
a consequence of a more general problem we have with defining anything,
anything at all. So what's Jewish? Well, Jewish is tough to define, you say,
tougher even than theft. Okay, how about chair or dog? Define either one of
them.
Definitions are supposed to identify a set of necessary and sufficient
conditions that will pick out those things, and only those things, which the
definition is supposed to capture. So a definition of dog should pick out dogs
and only dogs, not all dogs except Pekinese or all dogs plus a few cats. We
tend to think that children are not very good at this sort of thing (Question:
What is a dog? Answer: Is furry, goes woof, sometimes bites). We tend to
think that as children grow older they will get better and better at defining
things. We then think we those of us who have grown up can do it. But can
we? Theres no reason to become too smug about this. Most studies show
adults are not much better than children at this sort of thing and if recent
experiments in Psychology are to be believed, words may not even have
defintions! So the difficulies we face defining what makes soemthing a crime
or what makes something a case of theft may be more a reflection of a
general disability we have with this sort of thing than a reflection of any
trouble we are having with defining crime or theft.
Take chair, for an example. How about has four legs and a back? But what
about bean-bag chairs? And what about dogs? Dogs have four legs and a
back. So we have not got very far; we havent even been able to distinguish
chairs from cats and dogs. How about something to sit on? But so are sofas
and benches and bucket seats are also things to sit on. Our difficulty arises in
part from our trying to find what is common to all chairs, but there may be no
such common criterion or set of criteria. Take the concept of a game. Put the
games of chess and checkers next to one another. It is not difficult to find
certain features that they have in common. But now put the game of jacks
next to checkers, and next to jacks, solitaire, and next to solitaire, baseball,
and so on and so on. Ludwig Wittgenstein, a philosopher from the earlier half
of this century, proposed that there may indeed be no one thing that all
games have in common, only a set of "family resemblances" between various
games, no one feature which runs through the whole lot of them, but a series
of overlapping commonalities, like a good piece of rope or hemp which is
made up of many overlapping fibers but no single fiber runs through the
entire length.

23
V. WHAT MAKES SOMETHING A CRIME?
What then makes something a crime? Well, just because it is hard, if not
impossible, to come up with a feature or set of features that all crimes have
in common, does not mean that we cannot uncover several family
resemblances that some, if not all, crimes share. In this spirit there are at
least two conditions, ceteris paribus, that must obtain if an individual is to be
found guilty of a crime. An individual must (1) have committed a bad act and
(2) have a guilty (or evil) mind.
Of course, it is possible to think immediately of exceptions to this simple
formulation. The exceptions, however, are not necessarily unreasonable, but
seem to be required by other considerations, such as considerations of justice
or to follow, in some understandable fashion, from the very conditions
themselves. Sometimes the execptions are controvrsial and have been
contested and so (not unsurprisingly) make for good discussion and debate.
In any event, sometimes we acting as a community are ready to convict one
of our members of criminal activity, even if there was, strictly speaking, no
bad act only a guilty mind and other occasions where we are ready to convict
even if there was, strictly speaking, no guilty mind, no evil intent, only a bad
act. Criminal attempts are an example of the latter. The actual result of an
attempt is often harmless. The bullet, for example, intended for the President,
missed the President and became lodged in a tree. The tree absorbed the
blow without much damage to itself and has grown into a grand old oak. Still,
as we may well suspect, the bullet might have hit the President. But criminal
attempts are by their nature failed crimes, and failed crimes are failed bad
acts, and a failed bad act is not, strictly speaking, a bad act. It might have
been bad. But it wasnt. Thats why its an attempt. The criminal law also
sometimes punishes omissions and omissions by their very nature are not
acts, but failures to act. And yet omissions can also be crimes. Lifeguards and
nurses who fall asleep while on duty can be charged with negligent homicide
if someone dies on their watch and the death can be linked to their failure to
respond. Some crimes such as the illegal possession of a weapon are also not
acts in the strict meaning of the term. So much for the requirement that
crimes must involve a bad act!
Then too there are some bad acts which are punishable, but which do not
require a culpable state of mind, crimes that are punishable even though they
were unintended, inadvertent, unforeseeable, and practically impossible to
prevent. Examples of just such a class of crimes where no intent or guilty
state of mind is required are strict criminal liabilityoffenses such as statutory
rape cases, felony murder cases, and many products liability cases. So much
for intent and a guilty state of mind!

VI. ACTUS REUS AND MENS REA

Still, despite the exceptions, most crimes require the presence of a bad act
and a guilty mind. The two basic elements of criminality are marked by their
Latin names: actus reus and mens rea. Actus reus refers to an act of

24
wrongdoing: running a red light, taking a Honda (someone elses) for a test
drive and never coming back, shooting someone. In this respect, the criminal
law is concerned with conduct, with things people do. So, ignoring the
exceptions for there to be a crime, there must (first) be an act The Model
Penal Code, upon which most states base their criminal laws, defines an act
as a muscular movement under conscious control. This rules out acts
committed while under hypnosis or while sleep-walking or done reflexively.
The expression mens rea is sometimes taken to mean intent as well as guilty
mind, evil mind or a culpable or blameworthy state of mind. One must have
committed an act and the act must be accompanied by a blameworthy state
of mind before one can be said to have committed a crime. This is frequently
stated by saying that a criminal offence is an act committed with the intent to
commit the offense.
The Model Penal Code suggests that every criminal offense be broken down
into its constituent elements. Take burglary, for instance. Most jurisdictions
put it in the following way: Knowingly breaking and entering the dwelling
house of another with the intent to commit a felony therein. This is then
broken down into its constitutent elements: (1) breaking and entering, (2)
dwelling house, (3) of another, (4) intent to commit a felony.
Then, given the two fundamental requirements for the commission of a
crime, a bad act and a guilty mind,the Code proposes that in order to be
convictable of the offense of burglary, I must have the requisite state of mind
with respect to eact element of the offense. I must, with intent or conscious
purpose, have broken in and entered onto property; have done so with the
awareness that it was a dwelling house and the dwelling house of another,
and that I intended to commit a felony once I got inside. Failure to possess
the requisite state of mind with respect to any one of these elements would
mean that I could not be convicted of burglary.
So imagine that I leave my house late at night , intending to burglarize some
homes down the street. It is unusually dark and foggy; I wander around,
become lost, and break into my house. Have I committed burglary? No;
though I acted with the conscious purpose or intent to enter, I did not do so
with respect to the dwelling house of another. Frustrated, I set out again the
following evening. It is even darker and foggier than the night before. I
wander around, become lost, and decide to return home. I walk through the
unlocked door of what I think is my own home. But it is not my house. Have I
committed burglary? No; though I entered the dwelling house of another, I did
not do so with the purpose to enter the dwelling house of another; I acted
with the intent to go home, even though that is not where I ended up.

VII. THERE IS MORE TO MURDER THAN KILLING SOMEONE

So the notion of a crime is inextricably bound up with our being able to show
that the accused performed a bad act and did so with a guilty mind. Equally
important to understanding a crime is the practice of punishment. Not all bad
acts after all are criminal offenses. Falling asleep at your sons >barmitzah is
bad, some might even say unforgiveable, but its not a crime! Crimes are
those bad acts which the community as a whole seeks to prevent or prohibit.

25
Our laws are sometimes preceded by a preamble which states what kind of
conduct we are aiming to prevent. But the community also recognizes that
conduct it aims to prevent may sometimes be justified. So, for example, the
community forbids killing another person, but it is prepared to accept the
defense that the killing was done in self-defense. If so, killing someone may
turn out to be no crime at all! What constitutes a crime, therefore, is bound
up with what constitutes an acceptable defense and what makes a defense
acceptable is inextricably linked to what conduct we will punish, i.e., to what
judges and juries will do.
So even if we know which bad acts the community as a whole seeks to
prevent or prohibit as a public wrong (an offense, as it were, against us, the
people), we still cannot know if a crime has been committed merely by
looking to the penal statutes. Something more is needed. If we suspect that
John has murdered Alice. And if we look murder up in the book of statutes
and discover that it is indeed prohibited by the state as a public offense, we
still shall not know if John has murdered Alice.
What does it mean for John to be guilty of murder? Well, at the very least it
means (1) that there is some bad act that society prohibits and will punish
and (2) John committed the prohibited act. But this is only a first step. To say
that John did it, to say that John killed Alice, is a first step, but its just that, a
step. It does not settle whether a crime has been committed or whether John
is indeed responsible for what he did. Was his act intentional? Did he
understand what he was doing? Does he have a justification or excuse for his
behavior? These further requirements prompt the observation: There is more
to murder than killing someone. Murder has at various times been described
as a killing that is purposeful, willful, deliberate, calculated, premeditated,
knowing, intentional, malicious, or conscious. But even if John purposefully,
willfully, deliberately, calculatedly, premeditatedly, knowingly, intentionally,
maliciously, and/or consciously killed Alice, he still may not be guilty of
murder, he still may not have committed a crime. Why not? Because John
may have a justification for what he did. He may, for instance, have acted in
self-defense. He may also have an excuse. Typical excuses include being a
minor (infancy), being forced or pressured against onee will by another
(duress), being unaware of crucial facts or circumstances (mistake), or
suffering from some kind of mental disability or defect (insanity). To know if
John has committed murder, it is necessary to know not only what he did, but
also to know what justifications and excuses are open to him and whether he
is able, under the circumstances of his alleged wrongdoing to offer an
acceptable justification or excuse.

VIII. FINDING ONE'S WAY ABOUT

Understanding what makes something a crime is more like knowing the rules
of a game and what moves to make at critical points in the game than it is a
matter of definition, more like finding your way about town than a matter of
coming up with a set of necessary and sufficient conditions which pick out
things of only one kind. When you move into a new neighborhood, you may
wonder where to buy milk and so you may wonder where to find the local

26
shop. What you need are good directions, not definitions of milk and shop.
Finding milk is more a matter of knowing where to look for it, knowing in
which direction to travel once you leave the house, knowing where to turn
and knowing how far down the block the shop which sells milk is located.
Much the same can be said about the criminal law. Knowing what makes
something a crime is more a matter of understanding its relation to other
things that we value and believe than it is a matter of identifying a set of
features that all crimes have in common. To understand what makes
something a crime it is necessary to become familiar with the role it plays
within the legal system as well as what key moves can be made within the
system, such as the mounting of a defense. Studying and learning about the
law is more like familiarizing yourself with a set of relationships than coming
to know a set of criteria
But enough said by way of introduction. You may now want to try your hand
at the twenty-one legal puzzlers, which have their own role to play in
introducing you to the study of law. You will have more fun if you do not dwell
too long on a puzzler, to give your intuitions as much rein as possible. There
will be plenty of time later on to think about the best way to resolve one or
another puzzler. If you feel the need for a bit more information and/or
guidance, feel free to make use of the commentaries on each of the puzzlers.
Good luck!
One final note: you will notice that each of the puzzlers revolves primarily
around the lives of three individuals: John, Alice and their (sometime) friend
Henry. As you read through the puzzlers you will discover that John and Alice
do not always get along. John does not seem to have a special liking for Alice
and, as far as Alice is concerned, the feeling seems to be mutual. John
sometimes shoots or tries to kill Alice and Alice sometimes shoots or tries to
kill John. Occasionally they succeed. And so at the end of a puzzler, John is
dead or Alice is dead. Sometimes Henry is dead. Since John and Alice (and
Henry) always seem to "spring" back to life in subsequent puzzlers ready for
new rounds of crime and mischief, their apparent indestructability should be
treated with dramatic license.

4. Suggestions for Further Reading

Andrew Altman, "Legal Realism, Critical Legal Studies, and Dworkin,"
Philosophy and Public Affairs, vol. 15, no. 2 (1986)
Thomas Aquinas, On Law, Morality and Politics (Indianapolis: Hackett
Publishing Co., 1988)
John Austin, Lectures on Jurisprudence and the Philosophy of Positive Law (St.
Clair Shores, MI: Scholarly Press, 1977)
------The Province of Jurisprudence Determined (Cambridge: Cambridge
University Press, 1995)
Randy E. Barnett, "Restitution: A New Paradigm of Criminal Justice," Ethics,
vol. 87, no. 4 (1977)

27
Jeremy Bentham, A Fragment of Government (Cambridge: Cambridge
University Press, 1988)
------Of Laws In General (London: Athlone Press, 1970)
Brian Bix, "Conceptual Questions and Jurisprudence," Legal Theory, vol. 1, no.
4 (December 1995), 465-479.
------Jurisprudence: Theory and Context (Boulder, CO: Westview Press, 1996)
------"Natural Law Theory," in Dennis M. Patterson (ed.), A Companion to
Philosophy of Law and Legal Theory (Cambridge: Blackwell Publishing Co.,
1996)
William Blackstone, Commentaries on the Law of England (Chicago: The
University of Chicago Press, 1979)
Jules L. Coleman, "On the Relationship Between Law and Morality," Ratio Juris,
vol. 2, no. 1 (1989), 66-78
------"Negative and Positive Positivism," 11 Journal of Legal Studies 139 (1982)
------"Authority and Reason," in Robert P. George, The Autonomy of Law:
Essays on Legal Positivism (Oxford: Clarendon Press, 1996), 287 - 319
------"Incorporationism, Conventionality and The Practical Difference Thesis,"
Legal Theory, vol. 4, no. 4 (1998), 381-426
Jules L. Coleman and Jeffrie Murphy, Philosophy of Law (Boulder, CO:
Westview Press, 1990)
Kimberle Crenshaw, Neil Gotanda, Gary Peller, and Kendall Thomas (eds.),
Critical Race Theory: The Key Writings That Formed the Movement (New York:
The New Press, 1995)
Patrick Devlin, The Enforcement of Morals (Oxford: Oxford University Press,
1965)
Gerald Dworkin, "Paternalism," The Monist, vol. 56 (1972)
Ronald Dworkin, Law's Empire (Cambridge: Harvard University Press, 1986)
------Taking Rights Seriously (Cambridge: Harvard University Press, 1978)
------"'Natural' Law Revisited," 34 University of Florida Law Review 165 (1982)
Joel Feinberg, Offense to Others (Oxford: Oxford University Press, 1985)
------"Civil Disobedience in the Modern World," Humanities in Review, vol. 2
(1979), 37-60
John Finnis, Natural Law and Natural Rights (Oxford: Clarendon Press, 1980)
William Fisher, Morton Horovitz, and Thomas Reed (eds.), American Legal
Realism (New York: Oxford University Press, 1993)
Jerome Frank, Law and the Modern Mind (New York: Brentano's Publishing,
1930)

28
Lon L. Fuller, The Morality of Law (New Haven, CT: Yale University Press, 1964)
------"Positivism and Fidelity to Law," 71 Harvard Law Review 630 (1958)
Klaus F¸þer, "Farewell to 'Legal Positivism': The Separation Thesis
Unravelling," in Robert P. George, The Autonomy of Law: Essays on Legal
Positivism (Oxford: Clarendon Press, 1996), 119-162
John Chipman Gray, The Nature and Source of Law (New York: Macmillan,
1921)
Kent Greenawalt, Conflicts of Law and Morality (Oxford: Clarendon Press,
1987)
H.L.A. Hart, The Concept of Law, 2nd Edition (Oxford: Oxford University Press,
1994)
------Essays in Jurisprudence and Philosophy (Oxford: Clarendon Press, 1983)
------Law, Liberty and Morality (Oxford: Oxford University Press, 1963)
Kenneth Einar Himma, "Positivism, Naturalism, and the Obligation to Obey
Law," Southern Journal of Philosophy, vol. 36, no. 2 (1998), 145-161
Oliver Wendall Holmes, "The Path of the Law," 10 Harvard Law Review 457
(1898)
Brian Leiter, "Naturalism and Naturalized Jurisprudence," in Brian Bix (ed.),
Analyzing Law: New Essays in Legal Theory (Oxford: Clarendon Press, 1998)
------"Legal Realism," in Dennis M. Patterson (ed.), A Companion to Philosophy
of Law and Legal Theory (Oxford: Blackwell Publishers, 1996)
John Stuart Mill, On Liberty (New York: Alfred A. Knopf, 1906)
Michael Moore, "Law as a Functional Kind," in Robert P. George (ed.), Natural
Law Theories: Contemporary Essays (Oxford: Clarendon Press, 1992)
------"The Moral Worth of Retribution," in Ferdinand Schoeman (ed.),
Responsibility, Character, and the Emotions (Cambridge: Cambridge
University Press, 1987)
Richard Posner, Economic Analysis of Law, 4th Edition (Boston: Little, Brown,
and Company, 1992)
John Rawls, "Legal Obligation and the Duty of Fair Play," in Sidney Hook (ed.),
Law and Philosophy (New York: New York University Press, 1964), 3-18
Joseph Raz, The Authority of Law: Essays on Law and Morality (Oxford:
Clarendon Press, 1979)
------The Concept of a Legal System: An Introduction to the Theory of Legal
Systems, Second Edition (Oxford: Clarendon Press, 1980)
Roger Shiner, Norm and Nature (Oxford: Clarendon Press, 1992)
M.B.E. Smith, "Do We have a Prima Facie Obligation to Obey the Law," 82 Yale
Law Journal 950 (1973)

29
Patricia Smith (ed.), Feminist Jurisprudence (Oxford: Oxford University Press,
1993)
C.L. Ten, Crime, Guilt, and Punishment (Oxford: Oxford University Press, 1987)
W.J. Waluchow, Inclusive Legal Positivism (Oxford: Clarendon Press, 1994)
Back to Table of Contents

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https://tamayaosbc.wordpress.com/2014/08/17/philosophy-of-law-

introduction/

Philosophy of Law; Introduction

Lecture 1
PHILOSOPHY OF LAW

INTRODUCTION
Nomenclatural Distinction

At the outset, a cursory distinction must be made between

“Philosophy of Law” and “Legal Philosophy.”

1. While they both deal with Philosophy and Law, their field of emphasis
is different. Philosophy of law is a branch of philosophy, and therefore
deals primarily with philosophy. Legal Philosophy is a discipline in law,
and therefore deals primarily with law. In other words, their operational
base is different – Philosophy of law is within philosophy, whereas Legal
Philosophy is within the legal academy.[1]
2. Consequently, because of the difference in their field of emphasis, it
seems that philosophy of law is broader than legal philosophy.
Philosophy is an all-encompassing subject that may have as its subject
matter anything under the sun; thus the so-called philosophy of X, and
philosophy of “law” is just one of the many possible subjects. The
philosophical approach is highly abstract and seeks for the ultimate
“whys” and “wherefores.” Legal theory deals specifically with how
institutions and legal processes are legitimized or justified.
3. The distinction, however, is never clear. They overlap in terms of
subject and themes. And in pursuit of a more academic discussion in a
post graduate course, it is becomes unimportant to distinguish
philosophy of law and legal philosophy.
Schools of Thought

31
 There are two major contending schools of thought in philosophy
of law: Natural Law Theory and Legal Positivism.

1. From the time of the ancient Greeks until the seventeenth century,
natural law was the only legal theory. In brief, natural law understands
law as an “ordinance of reason” and “intimately connected to
morality;” hence law must be “reasonable” and “just” otherwise it is
not law.
2. Legal positivism came after, generally contending that the law is only a
kind of “social technology” which does not necessarily have a moral
character. Under this theory, what the law does is regulate the
behavior of its subjects and resolves conflict between them.[2] A law
exists not for its moral or rational underpinnings but because of the
social mechanisms that promulgate it.
3. Roughly speaking, the two schools of thought differ in their
understanding of philosophy of law, in that natural law almost makes
philosophy of law as a “branch of moral or ethical philosophy,” while
legal positivism takes philosophy of law as the “philosophy of a
particular social institution.”[3]
Natural Law Legal Positivism

Law and morality are Law and morality are

intimately connected. different.

Philosophy of law is a Philosophy of law is the

branch of moral philosophy of a particular
philosophy. social institution.

In essence, law is an In essence, law is an

ordinance of reason. institutional construct.

Questions asked in Philosophy of Law

1. Logically, the main question asked in philosophy of law is “what is
law?” And since it could be answered in various ways, contending
schools of thought also emerge from it, as seen above.
2. Other related questions would be – Is law the same as morality? Is it
universal or just man-made? Does it have a specific purpose? Is it for
the attainment of justice? Is it for socio-economic and political
equality?
3. From these questions, it could be seen that philosophy of law has a
very vast scope. To limit it therefore, emphasis will be placed upon
leading theories only (Natural and Legal Positivism).
Importance of Studying Philosophy of Law

32
1. It must be emphasized that the social, moral, and cultural foundations
of law, and the theories which inform and account for them, are no less
important than the law’s “black letter.”[4] A well-entrenched
understanding of the printed provisions of law is impossible without
knowing the spirit or philosophy which lies underneath them.
2. Legal theory has a decisive role to play in defining and defending the
values and ideals that sustain our way of life.[5] When laws are
threatened of abolition, the defense always takes recourse in
philosophy to justify their existence. Laws are at the heart of every
legal institution, including the state, so that the latter’s legitimacy is
anchored on the philosophical justification of its laws.
3. Philosophy of law is not among the eight bar subjects. But this does not
mean that it is useless in taking the bar exams. Many examinees fail
because they lack philosophical aptitude and legal reasoning. In truth,
the foundation of all bar subjects is philosophy. Take for example,
constitutional law and criminal law:
4. Constitutional law, which is under political law, is based on critical
liberal philosophies enunciated in Article II (Declaration of Principles
and State Policies) of the 1987 Philippine Constitution. Understanding
the philosophical foundations of political law is necessary to tie up its
numerous details.
5. Criminal law likewise is based on various philosophies and principles.
Rationalizing in the bar demands a succinct understanding of how
crimes are defined and penalized according their underlying
philosophies.
6. For example, why should penal laws be liberally interpreted in favor of
the accused? Justice, which is a principal philosophical concept,
explains this, in that the disadvantaged (in this case, the accused)
should be given more opportunities than the advantaged (in this case,
the State). Thus, the rule of “pro reo,” which provides that the penal
laws should always be construed and applied in a manner liberal or
lenient to the offender. This rule is constantly repeated as the
underlying philosophy in many provisions of the Revised Penal Code.
7. Philippine criminal law system uses four philosophies depending on the
circumstances:
(1) Classical or juristic theory which provides that man, who
possesses freedom, is punished for an act or omission willingly,
voluntarily, and intelligently performed. Under this philosophy,
man should be adjudged or held accountable for wrongful acts so
long as free will appears unimpaired,[6] so that if one lacks free
will and intelligence, he should not be held criminally liable. This
philosophy is so basic it is implied so often in bar exams.
(2) Positivist or Realistic Theory which provides that man is
inherently good but his acts or behavior may be conditioned by his
environment. Because of his upbringing, social environment and
associations he may become socially ill or an offender. Thus, under

33
 this philosophy penal laws are meant to “reform” and the penalties
are considered “corrective or curative.” Jails are reformatories and
penalties are imposed after an examination of the circumstances
of the offender. Unlike the classical theory which emphasizes on
the offense itself, positivistic theory emphasizes on the offender
and not on the offense.
(3) Ecclectic (or mixed) Philosophy which combines good features
of classical and positivist theories. As contended by many legal
theorists, the classical theory should be applied to heinous crimes,
whereas the positivist should be applied to socio-economic crimes.
The Philippines generally adapts the eclectic philosophy
(4) Utilitarian Theory which is based on the maxim “greatest
happiness for the greatest number of people.” The fundamental
idea behind this philosophy is that the primary function of
punishment in criminal law is to protect the society from potential
and actual wrongdoers.
Approaches in Legal Theory
There are two approaches in explaining law: descriptive and
normative.[7]
1. Descriptive legal theory seeks to explain what the law is, and why, and
its consequences.[8] It is about the facts of law. It has three principal
types:
2. “Doctrinal” which seeks to elucidate a case based on an “underlying
theory”;
3. “Explanatory” which seeks to explain why the law is as it is; and
4. “Consequential” which seeks to discuss the consequences of a certain
set of rules.
5. Normative legal theory is concerned with what the law “ought to
be.”[9] It is about legal values. As such, it is closely associated with
moral and political theories.
6. It is important to note however that there is no rigid delineation
between the two. Often, one approach leads to another. Utilitarian
normative theory, for example, needs a descriptive account of the
consequences of rules, and vice versa.
NATURAL LAW THEORY
Origin of the Natural Law
1. The term “natural law” is misleading. At the outset, it must be made
clear that it does not refer to the physical laws of nature. Natural law
theory originated from ancient Greece as a moral theory, which
tackles the all-important issue of the “good or happy life.” Evidently, it
seeks to explain the nature of morality and not of law. The question,
therefore, is how did it become a theory of law?
2. During the time of the Greeks, they consider morality as field
separate and distinct from religion. For them, a person can be

34
 moral even if he does not believe in God. This is possible by means of
reason. Man is capable of thinking, and it is by using his reason that he
comes to understand what is right from what is wrong. He knows, for
instance, that killing is wrong because it is unreasonable and not
because God says so. A person therefore learns to act rightly through
his faculty of reason.
3. Since acting rightly necessarily includes others, as one’s act affects
another, individual morality includes politics. Knowing how to act
rightly necessarily involves how to deal rightly with one’s fellow men.
Inasmuch as a moral theory involves a rule of conduct, it may also be
construed as law in the broad sense. It is along this line that the moral
theory developed into a theory of law.
4. Aristotle was among the first thinkers who embarked on the Natural
Law Theory. The bridge between “individual morality” and “social life”
is encapsulated in his assertion, “man by nature is a political animal.”
This means that it is ingrained in each person the natural tendency to
live in a community because it is only in a community that he becomes
truly human – he becomes civilized, educated, and truly rational.
Outside the city (polis) he is just an animal.
5. Also according to Aristotle, man is a rational animal, meaning aside
from his “animality” he also has “rationality,” which puts him over and
beyond other animals. Part therefore of the nature of man is his
“reason.” In other words, it is natural for man to reason out. It is along
this context that a moral theory, which is based on reason, is said to be
a natural theory. When one says, “there is something unnatural about
this,” what he means is there is something unreasonable about the
thing. So if one acts irrationally, it also means he is acting
unnaturally. It could therefore be said that the essence of law under
the natural law theory is its rationality.
6. At this juncture, the connection of the following concepts must be
clear: morality – reason – law. Morality demands reason. Reason
determines the conduct of man. The dictates of morality and reason
constitute a norm of conduct. Morality and reason are the bases of law.
7. It was said earlier that ethics leads to politics. In fact, the ethical
treatise of Aristotle was a preamble to his political treatise. The pursuit
of the good life requires a determination of the ideal society or
government. Nowadays, “natural law” is generally taken to mean only
that part of the original moral theory which explains the way that the
law, narrowly construed, operates as part of a broader moral life of
individuals.[10] Political institutions, like the states, are
legitimized or justified by the moral theory from which they
were drawn. Using the political institution theorized by Plato (teacher
of Aristotle), for instance, the rulers must be wise and morally upright.
Their authority depends on how they embody the political criteria of
wisdom and morality.
8. Rome carried on the Greek and Hellenistic philosophical tradition, but it
was faced with the problem of relativism, which rejected universal
standards. In the ancient world, Rome was the melting pot of all
cultures, beliefs, and races, somewhat analogous to the United States
now. Relativism was particularly dangerous to the Romans because it

35
 could prevent them from formulating workable rules which would
uniformly govern everyone within their vast empire. The varied
customs and practices of particular cultures must be replaced by laws
recognizing universal or common nature.[11] The natural law theory as
it developed in Rome sought to explain the common nature of man
which is the basis of morality or natural law.
9. The dominant philosophical school in ancient Rome was Stoicism. The
stoics emphasized on the importance of the performance of one’s duty
and accorded primacy to reason. According to them, a person should
concern himself only of the things that are within his power, i.e. only
the activities of his soul. He cannot control all other things. Thus, to be
rational simply means to perform one’s duties conscientiously and
virtuously because he cannot do otherwise.
10. What resulted from this philosophical activity was the jus gentium,
which was a legal order meant to apply to all persons throughout the
Roman Empire. At first, the jus gentium was applied to foreigners or
second class citizens, then eventually it became a superior legal order
or universal application. The rise of jus gentium into a superior law was
caused by the need to provide a universal standard of justice.
11. Critical to understand under the natural law theory, as expounded by
the Stoics, is the Latin maxim “lex injusta non est lex” or “an unjust
law is not a law.” If, for example, the Philippine Congress passes a
statute that orders the taking of all farmlands without need of paying
the landowners, then such statute would provide no law at all. It must
be pointed out clearly, that an unjust law (or one that deviates from
the principles of morality or natural law) is not even a “bad law” but
rather, it is not a law at all. Natural lawyers are not just evaluating the
morality of the law. For them, if a law is immoral it is not law at all.

12. Positivist thinkers are particularly critical at this Latin

maxim. They distinguish law from morality. They argue that an
immoral law, as long as it was passed validly by the Legislature, is still
a law, even though it is a bad law. For them, a law may be wicked or
harsh, but just the same it must be followed because it is still the law.
This does not mean that the positivist lawyers are not critical about the
morality of the law. Jeremy Bentham, for instance, a positivist, was a
social reformer, who attacked “bad” laws. Take note, however, that
what he attacked was the “wickedness” of laws and not the “validity”
of the laws.
13. Hence, the principal goal of natural lawyers is to establish the
connection of law and morality. The intimate connection of the two
should support their claim that an immoral law is not a law at all. It
must be emphasized that as a natural lawyer one does not just
evaluate the morality of a law because even the positivists do it. What
a natural lawyer does is to establish the necessary connection of law
and morality so that when a norm is immoral, he could prove that it is
not a law itself.

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[1] See William Edmundson, Introduction, “The Blackwell Guide to
the Philosophy of Law and Legal Theory” (ed. by Golding and
Edmunson) Blackwell Publishing (2005), p. 1.
[2] Jurisprudence and Legal Theory, University of London External
Programme, p. 61.
[3] See ibid.
[4] Raymond Wacks, Philosophy of Law: A Very Short Introduction,
Oxford University Press (2006), p. xiv.
[5] Ibid, p. xvi.
[6] People v. Genosa, September, 2000
[7] As to how law should be understood, it may be natural or
positivist. But as to the manner of studying it, it may be
descriptive or normative. Natural law theory and positivist theory
use the two approaches.
[8] Wacks, Ibid.
[9] Ibid.
[10] Jurisprudence and Legal Theory, University of London External
Programme, p. 62-63.
[11] See Ibid.

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!. What is law?

38