WHAT IS LAW?

LAW - The legislative pronouncement of the rules which

should guide one’s actions in society; “the aggregate of
those rules and principles of conduct promulgated by the
legislative authority [court decisions], or established by
local custom. Our laws are… derived from a combination
of the divine or moral laws, the laws of nature, and
human experience, as [each] … has been evolved by
human intellect influenced by the virtues of the ages.
Human laws must therefore or necessity continually
change as human experience shall prove the necessity of
new laws to meet new evils, or evils which have taken
upon themselves new forms, or as the public conscience
shall change, thus viewing matters from a different moral
viewpoint”
ORIGIN AND NATURE OF
LAW
 KEY TERMS
 law that which a judge will decide concerning
matters properly brought before him/her; in a
broader sense, any rule that society will
enforce
 code in the common law, a collection of
statutes enacted by legislative bodies,
including Congress and states legislatures
 Civil Law codified law based on the Roman
code of Justinian; the basis of the legal system
of almost all European and Latin American
countries as well as many African and Asian
nations
 Common law law as developed and
pronounced by the courts in deciding cases
(“case law”), based on the common law of
England and judicial precedent

Fuller (1964) argued that law is a system of governance by
rules characterized by eight attributes: generality,
promulgation, clarity, non-contradiction, non-retroactivity,
stability, feasibility and consistency between rules as
announced and rules as applied.

Austin defined law as:-

“Law is a rule laid down for the guidance of intelligent
beings by an intelligent being having power over them.”

To Austin Law properly so-called is a species of COMMAND

characterized with 4 elements: (1) Command, (2) Sanction, (3)
Duty and (4) Sovereignty.
Hart’s Empirical Legal System in “The Concept of
Law”
Hart believed law is the union of primary rules (rules of
conduct) and secondary rules (empowering rules).

Primary Rules
Primary rules are rules, or laws, that govern general societal
conduct. Thus, primary rules construct legal obligations and
consequences when they are disobeyed. A good example of a
primary rule is the law against murder; it prohibits a person from
killing and attaches consequences for committing, attempting to
commit, and conspiring to commit the crime.
Secondary Rules
Secondary rules confer power to create sovereignty; they also
confer the power to change, modify, or enforce primary (and
secondary) rules. Secondary rules combat the three major
issues of legal system that primary rules can’t—(1)
uncertainty of the law, (2) efficiency of the law, and (3) static
quality of the law. Each kind of secondary rule addresses a
separate one of those three issues, yet all are interdependent.
Hart separates secondary rules into three types—the rules of
recognition, the rules of change, and the rules of
adjudication.
Rules of Recognition
Hart states that the remedy for the uncertainty of the regime of
primary rules is a rule of recognition. The rule of recognition is a
collection of standards and requisites that govern the validity of all
rules; thus, the rule of recognition confers power to new rules by
validating them. For a rule to be valid is to recognize it as passing
all the tests provided by the rule of recognition.

Rules of Change
There are no legal systems that can be classified as pareto optimal.
The next best thing is to make sure that the system does not
remain at a static quality but instead is dynamic and progressive.
The remedy for the static quality of the regime of primary rules are
rules of change.
Generally, rules of change confer and prohibit power of the
creation, extinction and alteration of primary and secondary
rules. Rules of change range in complexity: “the powers
conferred may be unrestricted or limited in various ways: and
the rules may, besides specifying the persons who are to
legislate, define in more or less rigid terms the procedure e to
be followed in legislation.” as mentioned earlier, rules of
change are interdependent with the other rules. Hart
emphasizes the “close connection between the rules of
change and the rules of recognition.” Where rules of change
exist, rules of recognition “will necessarily incorporate a
reference to legislation as an identifying feature of the rules,
though it need not refer to all the details of procedure
involved in legislation.”
Rules of Adjudication
Rules of adjudication were intended to remedy the inefficiency
of its diffused social pressure. Rules of adjudication empower
individuals to make authoritative determinations of the
question whether, on a particular occasion, a primary rule has
been broken. Rules of adjudication govern the election and
procedure of the judiciary. However, intermingled with who
adjudicates is what laws they adjudicate. Under that logic, rules
of adjudication, like rules of change, must also be
supplemented by rules of recognition, of some sort. Thus, “the
rule which confers jurisdiction will also be a rule of recognition,
identifying the primary rules through the judgments of the
courts and these judgments will become a ‘source’ of law.”
St. Thomas Aquinas's Philosophy of Law
• Summa Theologiae – Question 90 – 108 –
constitutes his philosophy of law
• Question 75 – 89 are questions on human nature
using Peter Abelade’s “Sic et Non” model.

What is Law?:
1) “An ordinance of reason promulgated by one
who has responsibility for the good of society.”
2) “An expression of Rational Order.”
Four Kinds of Law by Thomas Aquinas…
1) Eternal law is God’s providential ordering of natures to their ends,
including the design of human nature.
2) Divine law refers to God’s explicit commands, for instance, in the
Decalogue as found in Exodus & Deuteronomy and in Two Great
Commandments of Jesus in the gospels.
3) Natural law involves human participation in God’s eternal law as
regards the providential ordering of human life; the use of human
reason to reflect on what our common human nature is; and what is
required to respect that Human Dignity nature, as found in all
human beings.
4) Human law or positive law (positive in the sense of “posited” or laid
down authority”) consists of legislation of various types, including
constitutions, statutes, administrative decrees and ever customs.
Law of this type are far more specific than natural law and
determines matters that natural law leaves indeterminate, but these
laws should never violate natural law.
THE ORIGIN OF LAW
The origin of law is as obscure as the origin of
society, since the existence of law is a precondition of
society. In most primitive, unreasoned form, law rests
on brute power-the ability of one individual to control
other individuals through strength. The lex talionis,
the law of retaliation (an eye for an eye, a tooth for a
tooth), arose from the natural impulse of individuals.
As societies formed, this impulse was sanctioned by
government as law. The law of damages is the
substitution of monetary compensation for blood or
retribution in kind.
As time passed, however, it became necessary to
adopt
rules governing the conduct of individuals toward one
another and the conduct of a single individual toward
the body of individuals as a whole (society). Certain
laws were enacted, or evolved and developed, for
different purposes:
1. To proscribe certain kinds of behavior that society
finds objectionable. This is public law and concerns a
citizen’s relationship with society constituted as
government. Public law includes constitutional,
administrative, and criminal law and many forms of
antitrust law, environmental law. Labor law, and
securities regulation.
2. To make an injured party (citizen,
corporation, or other entity) whole. This is
private law and concerns an individual’s
relationship with another individual. In this
sense, private law includes torts, agency,
contract, corporation, partnership, and
property law.
3. To end disputes. This is again private law,
specifically contract law, the law governing
agreements. (If law is knowable, reasonable,
fairly certain, and yet flexible, it may prevent
disputes)
YOU SHOULD REMEMBER
The origin of law is obscure; society cannot
exist without law. Individual power and
cunning constituted the first law, and primitive
governments merely presided over the lex
talionis, or law of private retribution.
As societies became complex, it became
necessary to adopt rules of conduct for various
purposes (for example, to forbid objectionable
behavior, to make an injured party whole, and
to end disputes)
DEFINITIONS OF LAW
Only if the total collective, the society, enforces its
rules can they have any meaning, or serve any
purpose, in the regulation of conduct. One school
of thought, sometimes called the school of
American legal realism, considers law to be that
which a judge will decide concerning matters
properly brought before him/her; thus, in a
broader sense, this approach defines law as any
rule that society will enforce. For our purposes, we
prefer this definition of law. Generally, we will refer
to law in terms of judicial decisions as well as
statutory enactment.
However, there are other widely accepted
definitions of law. A school of thought sometimes
called “legal positivism” defines law as the
command of a constituted political authority;
“natural law” theorists argue that thee is a higher
law grounded in absolute moral rules and that any
law contrary to such natural law is not law. The
English jurist Sir William Blackstone defined law
as “a rule of civil conduct prescribed by the
supreme power in a state, commanding what is
right, and prohibiting what is wrong.”

LAW AND MORALITY
Law generally represents the developing, common
morality of human beings. Government almost seeks
to ally itself with prevailing customs, to proclaim as
right only that which most citizens already perceive to
be right, and to impose as law the rules considered by
the majority or by more powerful or vocal
minorities to be moral and therefore just. Thus, no
matter how law is defined, there is a close, although
imprecise, relationship between morality and any rule
that society will enforce.
Since law is, or should be, reflective of prevailing
morality, rigid societal control over all members of
should be unnecessary. The goal is self-control, based
on the individual’s own moral philosophy or
“instincts.” Indeed, the law’s typically majoritarian
and moral origins (described above) serve to
promote its enforcement, the ease or practicability of
which depends on the acquiescence of a large
preponderance of the population.
The relationship between law and morality is not
mere speculation. Contracts may be found illegal if in
violation of “public policy,” that is, contrary to the
“public good,” and some case law even refers to lawful
action consistent with that of “right-thinking
members of the community.” juries are considered to
the made up of ordinary people reflecting prevailing
morality.
Even if supposedly moral conduct proves illegal,
that is, in violation of a rule that society will
normally enforce, society’s enforcement in a
specific case may be muted, otherwise restrained,
or even suspended.
Example: Relationship Between Law and
Morality
In criminal law, even when an action is criminal, a
good motive is considered in mitigation of
punishment. “Bad motives can have the opposite
effect, such as leading to punitive damages in
tort cases.
YOU SHOULD REMEMBER

There is a close relationship

between law and morality. Law
not only has its origin in
morality, but also is easier to
enforce when citizens yield to
government for moral reasons.
DEVELOPMENT OF CIVIL LAW
As society became increasingly
complex, various “lawgivers”
attempted to provide orderly
systems of laws that would
promote security and justice.
There are four landmark “codes,” each of
which represents distinct progress in the
development of law:
Lawgiver Date Noteworthy Aspects
Hammurabi 1792-1750 Designed to promote “justice” but based on the
(Babylonian) B.C. lex talionis. A well-ordered system of 285 laws,
arranged by titles.

Solon 594 B.C. Established a stable government operating

(Athenian) under a system of rules imposed by a
consenting citizenry. “Citizens” were equal
under the law.

Justinian A.D. 533 Summarized and systematized the civil law of

(Roman) Rome; remains the basis for the laws of most of
Europe and Latin America and for parts of Asia
and Africa.

Napoleon A.D 1804 Preserved many democratic achievements of

(French) the French Revolution, such as civil equality
and jury trial. Influenced modern law, for
example, the modern law of the state of
Louisiana
Civil Law, or code law, is one of two major legal
systems currently in use in the western world. It is
based primarily on the written codes of Justinian and
Napoleon. The predominant feature of civil law is the
attempt to establish a body of legal rules in one
systematized code, a single comprehensive legislative
enactment. In this system, judicial decisions, case law,
are not a source of law, although judicial precedents
may be useful in the decision of cases. Civil law
remains the basis of the legal system in Italy, France,
Spain, Germany, and many other parts of the Western
world that were once included in the Roman Empire or
were under European colonial influence (e.g. Latin
America and many nations in Africa and Asia).
YOU SHOULD REMEMBER
The progress of law through the
centuries can be traced through the
activities of four “lawgivers” who
attempted to state the law in keeping
with their perceptions of evolving
civilization and to provide remedies for
those wronged.
The laws of certain countries are still
based on the principles set forth in
these codes.
DEVELOPMENT OF COMMON LAW
One country did not follow the comprehensive code
approach to law. In England, disputes were resolved on
a case-by-case, basis, binding the arbiter of a dispute
to the rule elicited from the determination of an
earlier, similar dispute-hence common law. Common
law is the second of the two major legal systems
currently in use in the Western world.
Today England (together with the United States,
Canada, Australia, New Zealand, and-to a lesser
extent-India and other Asian, African, and Caribbean
countries colonized by the British) follows the
common law. An understanding of the concepts
underlying the common law of England is thus vital to
any discussion of American law, including American
business law. Sir William Blackstone’s
Commentaries, published just before the American
Revolution, are generally considered to be the best
statement of England common law as it existed when
the United States became an independent nation.
According to Blackstone, the common law is that
“ancient collection of unwritten maxims and customs”
which have “subsisted immemorially in this kingdom.”
These principles are revealed by the courts of law
“through experience in the rendering of judicial
decision.” Common law is, therefore, the overall
accumulation of judicial decisions, known as case
law.
England has no written constitution. The basis
of its constitution is the common law, derived
mainly from precedent and incorporating also
certain landmark documents, such as the
Magna Carta (1215) and England Bill of
Rights (1689).
American common law includes not only the
“ancient maxims and customs” inherited from
England, but also all subsequent and modern
case law as developed and pronounced from
time to time.
PRECEDENT AND COMMON LAW; STARE
DECISIS
As common law developed, a
judge confronted with a puzzling
new case would search the
literature for a similar case to
determine whether a precedent
had been established. If so, the
judge would follow the prior
decision.
Stare Decisis
The requirement that courts follow their own
precedents is based on the legal principle of
stare decisis or “stand by the decision.” Stare
decisis binds all of the lower courts of a
jurisdiction to determinations rendered by the
highest court in that same jurisdiction.
Stare decisis is not absolute; a decision of the
highest court can be amended either by this
court’s changing its mind or by legislative
mandate.
If a case arises for which no modern
American or England precedent can
be found, the court sometimes bases
its decision on the Justinian code,
from which some areas of the
common law are derived. In the
absence of a precedent, a court may
follow its own sense of justice or
fairness, with due regard for
prevailing custom or morality.
LEGISLATION AND COMMON LAW
CODES
Unless changes are constitutionally prohibited,
Congress or the state legislatures may enact laws
(statutes) that modify the common law. These
statutes, also subject to judicial interpretation, are
collected into codes: along with case law, the codes
form the law generally applied in court. Unlike Civil
Law codes, common law codes are not intended to be
entire statements of the whole law; in fact, they often
are meant to be supplemented by judicial opinions and
also, for some areas of law, by administrative
regulation.
EQUITY AND COMMON LAW
After the conquest of England by William the
Conqueror (A.D.1 066), Norman kings created an
independent, but parallel, system of justice
alongside the developing common law, with
ultimate judicial responsibility residing in the king
himself. This system, the equity system, had
exclusive jurisdiction over injunctive relief (court-
ordered action) and the specific performance of a
contract as well as certain contract modifications.
Since the kings were not learned in the common
law, they based their decisions on sensible
principles of fair play (equity) embodied in
“maxims” or commonsense rules of Solomon-like
justice. As the equity system functioned alongside the
common law courts, the two systems of law gradually
merged. Equity maxims- “He who comes into equity
must come with clean hands,” “Equity regards that as
having been done which ought to be done,” “Equity
considers substance, not form,” “Whoever seeks
equity must do equity (behave fairly),” “Equality is
equity,” “Do not sleep on your rights,” “Equity suffers
no wrong without a remedy,” an many other “fair play”
principles-were adopted by the common law and are
currently cited in judicial decisions.
Starting in the sixteenth century, before the equity
courts merged into the common law system, the
equity courts received responsibility for matters
previously vested in the ecclesiastical (church) courts
thus equity absorbed a number of functions involving
the family (divorce, annulment, adoption). These
equity responsibilities became part of the general legal
system-and part of the common law-that developed in
the United States.
Although law and equity are today merged into a
common system in which equity principles are cited
freely, the old equity domain (injunctive relief, specific
performance of contract, contract modification, family
law, divorce) is particularly influenced by the idea of
fairness and is deliberately more relaxed in its concept
of justice. Also, jury trial is not
available in an equity-type proceeding,
the jury having been a feature of the
common law courts. Thus, although
the equity court as a separate system of
justice has ceased to exist, equity
principles permeate all of the common
law but are most diligent applied to
traditional equity subject matter.
YOU SHOULD REMEMBER
England, the British Commonwealth, and the United
States follow the common law. Whereas Civil Law
attempts to state the whole law in a comprehensive
code, the common law is found in the collected cases
of the various courts of law. American common law
began with the common law of England as
summarized by Blackstone in his Commentaries. It
includes the English common law and all subsequent
legal developments, including the principle of stare
decisis.
Common law codes should not be confused with Civil
Law code. In the common law, a code is a collection of
statutes passed by a legislature; a Civil Law code is
intended as a full and comprehensive
statement of the whole law.
Equity began as an independent legal
system based on concepts of fair play. It
covers injunctive relief, specific
performance of contract, and certain
contract revisions, as well as parts of
family law. Many of the principles and
maxims of equity have been merged
into the common law. There is no jury
trial in an equity case.
SUBSTANTIVE LAW AND PROCEDURAL
LAW
Substantive law refers to any body of law
creating, defining, and regulating rights and
obligations within the framework of a single
subject, such as contracts, torts, crimes, or
property.
Procedural law pertains to operating rules for
obtaining substantive rights or defining
substantive obligations in a court of law. Procedure
may be as important as substance in obtaining
justice, since access to the court and proper
statement of the cause of action (basis for a
lawsuit) are controlled by the rules of an orderly
society.
In the federal legal system and in most state
systems, procedural rules are promulgated by the
judiciary, adopted after public hearings, and
published along with editions of the various codes.
The rules of procedure are intended to promote
justice and are to be interpreted flexibly and
broadly, in the interest of fairness. A trial
attorney’s basic skills center around his/her
mastery of procedure.
Lesser court, such as small claims courts or
probate courts, have developed simplified
procedures so that citizens may handle their own
cases without benefit of attorneys.
YOU SHOULD REMEMER

Substantive law defines legal

rights and obligations in regard
to a specific subject.
Procedural law is concerned
with the enforcement of
substantive law in a court of law
ENLIGHTENED HISTORY OF
“COLLECTIVE WILL”
Hobbes, in Leviathan (1651) introduced an early
version of the social contract (or contractarian)
theory, arguing that to overcome the “nasty,
brutish and short” quality of the life without the
cooperation of other human beings, people must
join in a “commonwealth” and submit to a
“Sovereigne [sic] Power” that is able to compel
them to act in the common good. This expediency
argument attracted many of the early proponents
of sovereignty. Hobbes deduced from the
definition of sovereignty that it must be:
ENLIGHTENED HISTORY OF
“COLLECTIVE WILL”
ABSOLUTE: because conditions could only be
imposed on a sovereign if there were some outside
arbitrator to determine when he has violated them, in
which case the sovereign would not be the final
authority.

INVISIBLE: The sovereign is the only final authority

in his territory; he does not share final authority with
any other entity. Hobbes held this to be true because
otherwise there would be no way of resolving a
disagreement between the multiple authorities.
ENLIGHTENED HISTORY OF
“COLLECTIVE WILL”

Hobbes’ hypothesized that the ruler’s

sovereignty is contracted to him by the
people in return for his maintaining
their safety, led him to conclude that if
the ruler fails to do this, the people are
released from the obligation to obey
him.
ENLIGHTENED HISTORY OF
“COLLECTIVE WILL”
Bodin’s and Hobbes’s theories would decisively shape the
concept of sovereignty, which we can find again in social
contract theories, for example in Rousseau's (1712 – 1778)
definition of popular sovereignty (with early antecedents
in Francisco Suárez’s theory of the origin of power), which
only differs in that he considers the people to be the
legitimate sovereign. Likewise, it is inalienable –
Rousseau condemned the distinction between the origin
and the exercise of sovereignty, a distinction upon which
constitutional monarch or representative democracy are
founded. Niccoló Machiavelli, Thomas Hobbes, John
Locke, and Montesquieu are also key figures in the
unfolding of the concept of sovereignty.
ENLIGHTENED HISTORY OF
“COLLECTIVE WILL”
The second book of Jean-Jacques Rousseau’s Du Contrat
Social, ou Principes du droit politique (1762) deals with
sovereignty and its rights. Sovereignty, or the general will,
is inalienable, for the will cannot be transmitted; it is
indivisible, since it is essentially general; it is infallible and
always right, determined and limited in its power by the
common interest; it acts through laws. Law is the decision
of the general will in regard to some object of common
interest, but though the general will is always right and
desires only good, its judgment is not always enlightened,
and consequently does not always see wherein the common
good lies; hence the necessity of the legislator. But the
legislator has, of himself, no authority; he is only a guide
who drafts and proposes laws, but the people alone (that is,
the sovereign or general will) has authority to make and
impose them.
ENLIGHTENED HISTORY OF
“COLLECTIVE WILL”
Rousseau, in his 1763 treatise Of the Social Contract argued,
“the growth of the State giving the trustees of public
authority more means to abuse their power, the more the
Government has to have force to contain the people, the
more force the Sovereign should have in turn in order to
contain the Government,” with the understanding that the
Sovereign is “a collective being of wonder” (Book II,
Chapter I) resulting from the “general will” of the people,
and that “what any man, whoever he may be, orders on his
own, is not law” (Book II, Chapter VI) – and furthermore
predicated on the assumption that the people have an
unbiased means by which to ascertain the general. Thus
the legal maxim, “there is no law without a sovereign.”

The 1789 French Revolution shifted the possession of sovereignty from

the sovereign ruler to the nation and its people.
FORCES INFLUENCING LAW
1. Law is a Product of Social Forces.
2. Social Environment of Law
 Educational & Religious Institution
 Family Unit
 Unions
 Corporation, Trade Associations
 Fraternal Organizations
 Neighborhood Associations
 Political Parties
 Pressure Groups
 Power of Tradition, Habits, Ideas and Ideals e.g.. Abortion, Segregation,
Affirmative Action
 “Climate of Opinion – Natural Justice, Divine laws
 Human Inertia, Greed, Altruism, Prejudices, Ignorance and Sheer Accident
FORCES INFLUENCING LAW
3. W. Holmes's book “The Common Law” – 1881 (S.C.
Judge) indicated that:
“The life of the law has not been logic: It has been
experience based on:
 The felt necessities of the time
 The prevalent moral and Political theories
 Institutions of Public Policy – avowed or
unconscious
 Prejudices which judges share with their fellow men
These have had a good deal more to do than the
Syllogism in determining the rules by which men
should be governed.
FORCES INFLUENCING LAW
OTHER FORCES
1. Intellectual and charismatic forces exerted by particular
individuals. The “greats” among judges, legislators,
administrators and advocates.
- Roscoe Pound commented on traditional legal notions of
justice in terms of the ‘tenacity of taught tradition’,
received ideas of rightness and wrongness and “received
techniques” of utilizing “principles” to bring about a
body of logically independent PRECEPTS.

2. Ambiguities of principle & competition among

principles, precedents, analogies & maxims.
ROLE OF LAW
“To organize, channel, legitimize
and in a substantial measure to
redirect, the course of changes
that started outside the law”.
FUNCTIONS OF LAW
1. Dispute Settling
2. Enforcement Role – e.g. To enforce Arbitration
3. Maintaining order – Through Criminal Law, against
violence or aggravated harm to persons or property
by the threat of Penalties of Imprisonment and/or
fines. Also includes the Entire judicature– Police,
courts, Prosecutors, Parole/ Probation officers.
 Also Sedition & Related Laws, Violent Overthrow of
Governments.
FUNCTIONS OF LAW
4. A framework within which certain common
expectations about the transactions, relationships,
planned happenings and accidents of daily life can
be met – PREDICTABILITY function (Certainty)
which can also be an extension of maintenance of
order.
5. Providing efficiency, harmony and balance in the
functioning of the government machinery – through
Constitution – Separation of Powers, Full
Employment Acts, Fiscal & Monetary Planning,
Zoning, Land Use Controls, Conservation Laws and
Environmental Protections.
FUNCTIONS OF LAW
6. Protection of citizens against excessive or unfair
government power – Bill of Rights

7. Due Process – fair procedure & freedom from

arbitrariness.

8. Protecting people against excessive or unfair private

power – anti trust laws, minimum wage laws, anti-
discrimination laws, compelling collective
bargaining with Unions, SEC regulations in
Corporate Sale of Securities
FUNCTIONS OF LAW
9. Assuring people an opportunity to enjoy the
minimum decencies of life – Protecting Economic &
Health Interests – Unemployment Insurance, Social
Security, Medicare, Public Housing, Welfare/Anti-
Poverty Programs, Bankruptcy and Garnishment
Protection, Psychic Health, Privacy Laws,
Environmental Laws.
DOES LAW HAVE AN ETHICAL OR
MORAL FUNCTION?
YES!
1. Settling Disputes – MORAL, aims at fair and socially
desirable end.

2. Criminal Laws – They mostly carry out ETHICAL

PRECEPTS of CONDUCT – Many are in the 10
COMMANDMENTS.

3. Tort Law – Principles concerning either negligent or

intentional infliction of injury may be traced to the
‘GOLDEN RULE’ - MORAL
DOES LAW HAVE AN ETHICAL OR
MORAL FUNCTION?
4. Contract Law – The obligation to keep one’s
promises is ETHICAL Obligation
5. Judicature – Functions to bring about SOCIALLY
DESIRABLE results – MORAL
6. Protecting people from Unfair Exercise of Public or
Private Power – ETHICAL AND MORAL
7. Raising Standard of living of Disadvantaged –
Minimum Wage, Public Health – MORAL &
ETHICAL
DOES LAW HAVE AN ETHICAL OR
MORAL FUNCTION?
8. Legislations and Legal Principles uses EXPLICITLY
ETHICAL TERMS – e.g. ‘GOOD FAITH’, ‘NOT
PROFITING FROM ONE’S OWN WRONG’, FAIR &
EQUITABLE’, ‘UNJUST ENRICHMENT’
9. Constitutions speaks in terms of EQUALITY,
FAIRNESS AND DUE PROCESS.
10. MORAL DUTIES imposed by courts e.g. Helping out
a BLIND MAN cross the street. The courts do so on
the assumption that its choice will better serve the
public welfare – even though no legal duties.
DOES LAW HAVE AN ETHICAL OR
MORAL FUNCTION?
11. The law is honeycombed with “ought” propositions
that purport to be rationally based.

12. THE LAW IS NOT AN END IN ITSELF BUT A

MEANS TO AN END – IT IS A MEANS FOR THE
ACHIEVEMENT OF SOCIAL ENDS – Even THE
SABBATH we are told, was made for man, not man
for the SABBATH
DOES LAW HAVE AN ETHICAL OR
MORAL FUNCTION?
13. Judges want their decisions to be logically consistent
with a REASONABLE VIEW of the requirements of
the CONSTITUTION, STATUTE AND JUDICIAL
PRECEDENT – In difficult cases judges are
concerned with questions like FAIRNESS & SOCIAL
REASONABLENESS of the result.
An Astute legal Scholar in the name of Cohen (Ethical
System and legal Ideals) said “JUDICIAL DECISIONS
ARE NOT TRUE OR FALSE, BUT RATHER GOOD
OR BAD”.
STARE DECISIS
 Practice of deciding new cases based on
Precedent.
 A higher court decision based on certain
facts and law, is a binding authority on
lower courts.
 Helps court stay efficient
EQUITABLE REMEDIES
 REMEDY: means to enforce a right or compensate for
injury to their right.
 REMEDY AT LAW: In Kings courts, remedies were
restricted to damages in either money or property.
 EQUITABLE REMEDY: Based on justice and fair
dealing. A Chancery court does what is right: Specific
Performance, Injunction, Rescission.
 PLAINTIFFS: Injured party initiating the lawsuit,
 DEFENDANT : Allegedly caused injury
SOME CIVIL LAW COUNTRIES
Egypt
Argentina
Austria
France
Germany
Greece
Brazil
COMMON LAW COUNTRIES
Australia
Canada
Ghana
Nigeria
U. K.
Kenya
New Zealand
Jamaica
United States
PROCEDURAL DIFFERENCES BETWEEN AN
ACTION AT LAW AND AN ACTION IN EQUITY
PROCEDU ACTION ACTION IN
RE AT LAW EQUITY
Initiation of By filing a By filing a
law suit compliant compliant
Decision By Jury or By Judge (No
Judge Jury)
Result Judgment Decree
Remedy Monetary Injunction,
Damages Specific
Performance
or Rescission
COMMON LAW
COMMON LAW- The system of jurisprudence, which originated
in England and was later applied in the United States, which is
based on judicial precedent rather than statutory laws, which are
legislative enactments; it is to be contrasted with civil law (the
descendant of Roman Law prevalent in other western countries).
Originally based on the unwritten laws of England, the common
law is “generally derived from principles rather than rules; it does
not consist of absolute, fixed, and inflexible rules, but rather of
broad and comprehensive principles based on justice, reason,
and common sense. It is of judicial origin and promulgation. Its
principles have been determined by the social needs of the
community and have changed with changes in such needs. These
principles are susceptible of adaptation to new conditions,
interests, relations, and usages as the progress of society may
require. Also referred to as “Case Law”
SESSION LAWS

SESSION LAWS are laws bound

in volumes in the order of their
enactment by a state legislature,
before possible codification.
CODE
CODE is a systematic compilation of laws. The criminal
code refers to the Penal Laws of the jurisdiction, the
Motor vehicle Code to the Laws relating to
Automobiles, etc. Today most jurisdictions have
codified a substantial part of their laws.

All organisations record each new law in a volume of

session of Laws or Statutes at large; e.g. Public Law No.
91 – 112 (e.g. the 112th Law passed by the 91st Congress of
the United States). If the laws are not codified, they
will be in the volume of Session Laws.
STATUTE
STATUTE is an act of the legislature, adopted pursuant
to its constitution authority, by prescribed means and
in certain form such that it becomes the law governing
conduct within its scope. STATUTES are enacted to
prescribe conduct, define crimes, create inferior
governmental bodies, appropriate public monies, and
in general to promote the public good and welfare.
Lesser governmental bodies adopt ordinances;
administrative agencies adopt regulations.
SUBSTANTIVE LAW
SUBSTANTIVE LAW “the positive law which
creates, defines and regulates the rights and
duties of the parties and which may give rise
to a cause of action, as distinguished from
adjective law which pertains to and
prescribes the practice and procedure or the
legal machinery by which the substantive
law is determined or made effective.”
What is Philosophy
Philosophy is the systematic study of ideas, especially
those that are considered to be basic or fundamental.
Philosophy is both a tool for uncovering knowledge
and a body of knowledge itself-a tradition of learning
and study stretching from Plato’s Academy to the
modern university.
At an early stage in the history of Western philosophy,
the word philosophy was synonymous with learning
and referred to any systematic study. The earliest
Greek philosophers were also the first
mathematicians,
physicists, biologists, astronomers, psychologists, and
political theorists. Today, philosophy refers more
specifically to the critical study of five major topics:
Epistemology
Metaphysics
Ethics
Political Philosophy
Logic

Within each of these areas there are typically many

schools of thought, some rooted in the ancient world,
others of more modern origin. In addition, there is
major divide today between Analytic philosophy-the
primary methodology in the united states and Britain-
and Continental philosophy-primarily studied, as the
name suggests, in Continental Europe.
EPISTEMOLOGY
Epistemology is the study of knowledge-of what
knowledge is, what we can know, and how we can
know it. Epistemologists examine whether knowledge
is absolute and objective, meaning there is one truth,
or relative and subjective, meaning the truth depends
on one’s perspective. They also question how we can
separate truth from falsity, and whether it is ever
Possible to obtain certain knowledge. If certainty is
possible, what can we be certain about? If certainty is
not possible, what sense can we make of the world.
Skepticism takes as its starting point the
counterintuitive notion that we cannot be certain of
the world outside our mind or of the existence of other
minds, and attempts to build our knowledge up from
basic foundations. Idealism rejects this project and
claims that our thoughts themselves actually
constitute all that is real. Epistemologists also
distinguish different types of knowledge, such as
knowledge gained from our senses as opposed to
knowledge of abstract ideas. Empiricist believe the
former type should form the basis of all knowledge,
and rationalists believe the latter type of knowledge to
be more secure.
Metaphysics
Metaphysics is the branch of philosophy that asks
fundamental questions about the nature of existence and
reality. The discipline traces it roots back to the works of
Aristotle, who first questioned what we could know about
being and the concepts we use in scientific inquiry.
Ontology is the part of metaphysics that examines being
and existence. One of the main questions for ontologists is
what it means for something to be a physical object. For
example, are objects completely defined by the properties
they have, such as their color or size, or are those
properties merely attached to some sort of prior
substance?
This question is known as the problem of substance.
The problem of universals poses the challenge of how
we can understand properties such as color and size, to
the extent that it is possible to consider these
properties separately from specific objects. The
problem of identity asks how an object can change in
some respects but still remain the same thing.
Metaphysics also examines the nature of the mind as
opposed to physical substance, and in particular
whether the mind is essentially physical. Monism is
the school of thought that the mind is not separate
form physical reality, while Dualism refers to the belief
that mind and body are qualitatively different things.
Finally, metaphysics is also concerned with the
question of whether God exists, as well as questions
about the nature of space and time.
Ethics
Ethics is the branch of philosophy concerned with
morality and how we should act. Meta-ethics is the
study of the nature of moral concepts and ethical
statements. Meta-ethics addresses such questions as
whether ethical statements can be true or false, and
whether moral codes ought to be absolute or relative
to a culture or individual. Normative ethics is
concerned with uncovering general ethical rules. Some
philosophers, such as Hume and Rousseau, have
focused on the role of passion and feeling in this
pursuit, while others, such as Kant, have focused on
the role of reason. Normative ethicists disagree on
which such rules should take into account.

Deontology is the view that ethics should address

whether particular actions are good or bad in and of
themselves, regardless of the consequences that result
from these actions. Consequentialism, a contrasting
school, holds that the consequences of an action
should factor into whether the action ought to be
carried out. Utilizationtism, the view that the most
moral action is the one that produces the greatest
good for the greatest number of people, is an example
of a consequentialist theory. Modern philosophy is
increasingly concerned with applied ethics, in which
general ethical theories are applied to specific
disciplines, such as law and medicine.
Political
Political Philosophy
philosophy is the branch of philosophy
concerned with different systems of political organization,
relationships between the people, state and government,
and the nature and legitimacy of political authority. Much
modern political philosophy springs from the work of a
few Enlightenment philosophers: Hobbes, Locke, and
Rousseau. These thinkers held very different beliefs aboug
the nature of human beings considered apart from society,
but all of them believed that the legitimacy of government
authority ultimately rested on a social contract between
the ruled and ruler. Hobbes believes that this contract was
necessary to protect men from other’s darker tendencies;
Locke to protect natural rights such as life, liberty, and
Rousseau to ensure as much freedom as possible so
that people could live closer to their natural state.
Other philosophers, such as Plato and More, have
argued for certain systems of government by
describing utopias, or societies under ideal
governments.
Logic
Logic is the branch of philosophy that examines how we
expand our knowledge by building rationally upon what
we already know. Logic attempts to clarify and
systematize principles or patterns of reasoning, argument,
and inference so that we can expand our knowledge
without introducing any false beliefs. The syllogism, first
pointed out by Aristotle, provides a good example of one
of these valid patterns:
All men are mortal.
Socrates is a man.
Therefore, Socrates is mortal.
This is an example of a deductive argument, one of the
two main types of arguments that logicians study. This
argument is deductive because the truth of its
premises or assumptions (the first two lines above)
guarantees the truth of its conclusion. Inductive
arguments, on the other hand, do not have this
property. Instead, they are generalizations from
particular instances to broad rules. For example, an
inductive argument might conclude that all men are
mortal because all men observed in the world thus far
have died. As logic has progressed, logicians have
come up with more elaborate systems for representing
knowledge and reasoning, often employing symbols
rather than natural language. Careful examination of
these systems and their properties comprises much of
the logical work being done today.
Question 1

“The prophecies of what the courts will do in fact,

and nothing pretentious, are what I mean by the law.”

[Oliver Wendell Holmes.] Explain this statement and

show whether or not this central position of legal

realism represents an objective perspective from

which to understand law.

ANSWER
Anglo-American realism was based upon the famous assertion of Justice
Oliver Wendell Holmes, a nineteenth century American jurist that:
Take the fundamental question. What constitutes the law? You will find
some text writers telling you that it is something different from what is
decided by the courts of Massachusetts or England, that it is a system of
reason, that it is a deduction from principles of ethics or admitted axioms
or what not, which may or may not coincide with the decisions.
But if we take the view of our friend the bad man we
shall find that he does not care two straws for
axioms or deductions, but that he does want to know
the Massachusetts or English courts are likely to do
in fact. I am much of his mind. The prophecies of what
the courts will do in fact, and nothing pretentious, are
what I mean by the law. [Oliver Wendell Holmes, “The
Path of the Law”, (1887) 10 Harvard Law Review,
457]
The significance of this statement is the realist belief
that one can only ascertain the real rules which
judges apply by looking at what the judges do (i.e.,
the results of their decisions) rather than what they
claim to do. Hence, to legal realists, law is merely
what the Judges say it is, or a prediction of what the
Judges will do. Therefore, if the rules are not useful
for predicting the decisions of the courts, then they
are not real rules and consequently are not of any
use or practical value to legal realists.
This version of legal realism represents a more
moderate concept of realism which was widely
endorsed by jurists like Llewellyn and Gray.
Llewellyn adopted Holmes’ views and added that:
What these officials (i.e., judges) do about disputes is,
to my mind, the law itself. (Llewellyn, K., The Bramble
Bush, 1930, p. 3).
Similarly, Gray asserted that:
Law is only what the Judges decide. Everything else,
including statutes, are only “sources of law” until they
have been interpreted by a court [of law]. [Gray, J.C.,
The Nature and Sources of Law, (1921) 2nd ed., p. 84]
Holmes view about law provides an insight into law
which redressed the excesses of Conceptualism or
Formalism which assumed that all cases can be
decided by the rigid application of pre-existing legal
rules and that the role of the judge is one of pure
deductive application of the relevant rule to the case.
Holmes showed how a judge’s decision is influenced
by his individual conception of justice and social
policy. It also showed how the prevailing social and
economic factors play an important role to
supplement logical deduction.
This insight has stimulated interest in the study of
the sociology of law and in particular the sociological
factors that influence judicial decisions. Hence, the
present universal requirement that all judicial
decisions must be transparent and open to
discussion and criticism.
Legal realism, however, has been criticized because
the central role that it accords the Judge as the
source of law, thus elevating judicial precedent or a
Judge’s declaration, to theoretically unsound heights.
Legal realists distinguish between law in the books
(i.e., paper rules) and law in action (i.e., real rules)
which are actually applied in courts.
They contend that if the rules are not useful for
predicting the decisions of the courts, then they are
of no use and have no practical value. The claim to
realism is thus a rejection of theoretical analysis in
favour of a practical approach to understanding law.
A legal realist perception of law rejects any
doctrinaire or theoretical approach which presents
law as a value-free discipline. To legal realists, law is
merely what the Judges say it is, or a prediction of
what the Judges will do. In the famous words of
Holmes,
The prophecies of what the courts will do in fact, and
nothing pretentious, are what I mean by the law.
[Oliver Wendell Holmes, “The Path of the Law”,
(1887) 10 Harvard Law Review, 457]
Although it is arguable that legal realism provides
some insight into law by showing how the prevailing
social and economic factors play an important role to
supplement logical deduction and by stimulating an
interest in the study of the sociology of law and in
particular the sociological factors that influence
judicial decisions, its contribution to our
understanding of law is negligible.
Of course, there is no question that law functions as a
regulative mechanism for the settlement of disputes
and the maintenance of order or internal peace in
society. Law, however, as a unique social
phenomenon, is so integral to and plays such a
dynamic role in the total process of societal life that
it is unsatisfactory to explain it and its social
importance merely by reference principally to
judges, courts, and their authority to settle disputes.
Hence, law cannot be said to be simpliciter “the
prophecies of what the courts will do in fact,” a view
that has permeated and, to a large extent, distorted
jurisprudence and legal philosophy in Africa
especially with regard to the judicial development of
customary law. Interestingly, the strong
adherence to this view by eminent African
jurists has been justified on “jurisprudential”
grounds.
It is argued that “it would be chaotic to substitute the
individual opinions of private persons, however
learned they may be, for the authoritative
pronouncements of the lawfully constituted courts.”
Logically, this would seem to be placing the cart
before the horse: For it would require a law to create
the courts in the first place. This non-sequitur is
graphically painted by Tsikata who aptly points out
that:
Kludze, A.K.P., “Problems of Intestate Succession”, University of
Ghana Law Journal, 1972, p. 92.
[T]his justification is thoroughly self-serving: the
courts’ pronouncements are ‘authoritative’ because
they are ‘lawfully constituted’ and thereby
distinguished from ‘private persons’. But when we
ask for the law whereby these courts are ‘lawfully
constituted’ the logic of [this] claim compels us to
look to the pronouncements of these very courts.
Judges’ views are authoritative because they say so.
It is evident that in the attempt to explain the aspect
of law that accounts for the authority of those people
in society who are recognized to settle disputes, the
Realists have elevated this single function of law - the
settlement of disputes - to such heights that the
result is facile pragmatism based upon mere dogma
that offers little illumination about law.
Tsikata, T., “What is Law"? University of Ghana Law Faculty
Seminar Paper, 1978, p. 3.
The assertion that “law is what the judges say it is”, is
not only simplistic but is theoretically indefensible.
As such, legal realism is more the product of judicial
obfuscation rather than jurisprudential
enlightenment. It therefore provides little or no
contribution to a theoretical basis for understanding
law.
Question 2
Name and explain the five jural postulates identified
by Roscoe Pound and indicate how relevant these
postulates would be within the socio-economic
context of Ghana.
According to Pound, there are certain (implicit) basic
assumptions which determine the order of priority
in the evaluation of the conflicting interests in
society. These assumptions, which he calls the jural
postulates of the legal system, embody the
fundamental purpose of law.
The Jural postulates for law (in every civilization and
particular time and place) represent a criteria or
standard of interests to be recognized and secured
by law. Pound identified the following 5 jural
postulates in American society which according to
him, are the acme of a righteous and civilized life and
ought to regulate the conduct of people in a civilized
society:
(i)Jural Postulate I: In civilized society, the people
must be able to assume that other people will
commit no intentional aggression upon them.
(ii)Jural Postulate II: In civilized society, the people
must be able to assume that whatever they have
discovered may appropriated and controlled for
their own benefit. So also, whatever they have
created by their own labour and acquired under
the existing social and economic order may be
appropriated and controlled for their own benefit.
(i)Jural Postulate III: In civilized society, the people
must be able to assume that those with whom they
deal in the general intercourse of society will act in
good faith.
(ii)Jural Postulate IV: In civilized society, the people
must be able to assume that those who engage in
some course of conduct will act with due care and
not cast an unreasonable risk of injury upon other
people.
(i)Jural Postulate V: In civilized society, the people
must be able to assume that any person who
maintains anything or employs an agency that has
a natural tendency to cross the boundaries of their
proper use will restrain the thing or agency or
keep them within their proper bounds.
It is important to note that Pound is aware of the
limitations of his postulates and cautions that these
postulates are not based upon any absolute criteria,
and have no fixed nature, meaning or content.
According to him, they are relative, subject to change,
conditioned by values, ideas, and deeds of a people at
a particular time and place. Hence the need to
reformulate the jural postulates of society from time
to time and also to assess their relevance within the
socio-economic context of Ghana.
Question 3
“Explain the Marxist view of law as an ideological
superstructure and evaluate the contribution of
Legal Marxism to jurisprudence.
ANSWER
According to Karl Marx, the various forms of
ideological superstructure include:
(a)Political;
(a)Juridical;
(b)Religion;
(c)Philosophy;
(d)Morality;
(e)Aesthetics; etc.
These forms appear, at first, as the direct efflux of
their material behavior. Marx identifies five different
stages of the progressive epochs in the economic
formation of society. These are:
a) Asiatic / Ancient epoch;
b) Feudal epoch;
c) Capitalist epoch;
d) Socialist epoch; and
e) Communist epoch.
From the capitalist era, law acquires a special social
quality which is distinct from the overall centrality of
production. Thus the legal profession emerges with
professional lawyers who become occupied, full
time, with the administration of the law and with
formulating concepts (“mental abstractions”), which
give expression to the real life processes that have to
be regulated by law.
Law as an ideological superstructure is a reflection
of the property relations within the production
relations of society. As such, law is but a form
through which definiteness and expression is given
to the socio-economic relations of human beings in
society.
At same time, law, which is not simply form, but
assumes an ideological outlook, has the potential to
influence the socio-economic conditions cast into
form by it. “Law provides the legal framework and
form through which the transformation social life is
given expression.
Marx viewed law as an ideological superstructure or
a tool of power to control (protect) economic
interests e.g. property and land of the ruling classes.
This superstructure is supported by mystifying
(fooling) the masses (working class) into believing
that laws are neutral and must be obeyed since “that
is the law”. This avoids the important question of
what the role of law is per se.
the contribution of Legal Marxism to jurisprudence.
It is remarkable that Karl Marx is not a legal theorist,
a Jurist, Judge, a Law Professor, or even a lawyer. Also
remarkable is the fact that Marx does not attempt to
answer the narrow questions e.g. “what is law?” or
what ought to be law? So the question arises what, if
any, are the contribution of Legal Marxism to
jurisprudence.
Marx’s notable contribution to jurisprudence is the
demystification of how capitalism uses law to create
the myth of law’s neutrality and to propagate the
justice of law. Marx argued that the underlying
reality of law is to be found in the material basis of
society; i.e., in the concrete social and economic
conditions of material production which include
production, distribution, exchange, and
consumption. He therefore argued that law is a
reflection of the property or legal relations within
the production relations of society.
This reflection emerges as an ideological
superstructure, vis-a-vis the mode of production, to
provide a legal framework and form through which
the transformation of actual social life is given
definite expression for the guidance of the people.
Another contribution is his ability to use social and
economic contexts to examine the role of law rather
than observe what the law is or ought to be. Marx is
more than a legal theorist. He is a social scientist
who, in great measure, reduces law to a tool by those
in economic power to exploit the masses.
In order to appreciate the Marxist view of law and its
relevance to jurisprudence, one has to acknowledge
that Marx built his theory of class struggle on the
foundation of prior theories which he integrated into
a new mosaic of history and class struggle. Karl Marx
sets out to demystify the tools of society’s power
brokers (i.e. the power of the capitalist class) by
setting up a basic framework of “BASE” (i.e. working
class or the proletariat) and “SUPERSTRUCTURE”
(i.e. edifice of institutions that emerge to protect the
economic and political interests of the capitalist
class.
In the process, he provides a different perspective
about law which stresses the interdependence of:
(a)Ideas (i.e. ideology).
(b)The role and effect of environmental factors
(economic relations, i.e. the relationship between
the forces of production and the means of
production) which creates the class consciousness
in society.
(c)The role and effect of political structures.
(d)The role and effect of History.
Power in developing laws that not only control
(protect) economic interests such as property and
land; But also laws that also fooled the masses into
believing that laws must be obeyed since “that is the
law”.
For Marx, the question of law is not a theoretical one,
but a historical and practical, one that lives within
the confines of the class struggle. The crucial
question is what role does law play in the
interdependence of ideas, economic relations,
political structures, and history.
For Marx, none of these things can be separated from any
discussion of law. Unlike natural law philosophers, legal
positivists, legal realists, etc., Marx does not see law as
“something” to observe per se in terms of “how” it operates.
The issue, therefore, is not whether law exists, how it is
made, or whether judges make law by rules of recognition
or through political or social influences, or whether they
are followed in the common law tradition, etc. Marx takes
the notion of law well beyond a narrow assessment of the
“is” and the “ought” of the positivists vs. natural law
theorist debates. He viewed law’s central role in capitalist
society as being a tool of power:
And, by extension, how does the myth of the
neutrality of law support the mystification of the
fairness of law and the exploitation of the working
class. According to Marx, in order to understand law and its’
role in society, one has to understand the dynamics of what is
termed the class struggle and dive into the analysis of how
the various modes of production dictate the class
relationships. Once this is understood, then it is possible to
examine Marx’s so-called ideological superstructure and see
how it consciously and unconsciously builds up an
institutional system within society to exploit the workers.

Question 4
Critical Legal Studies has many different strands.
Nevertheless, all the different strands share some
common themes. List and explain these common
themes of the differents strands of Critical Legal
Studies.
ANSWER
Critical Legal Studies is probably the first critical
movement of recent times that has challenged the
predominantly positivist tradition of legal theory.
CLS rejects the idea that:
(a) General legal principles are embodied in judicial opinions.
(b) The correct principle can be discovered by legal analysis.
And that
(c) Judges can apply those principles dispassionately, free of
political bias and personal prejudice.
In other words, CLS rejects the notion that there is a distinct
legal reasoning, based in legal precedent, which is uniquely
suited to arrive at just outcomes. Critical legal studies scholars
dispute claims to legal legitimacy based in legal reasoning
devoid of politics. According to them, this is a claim to
neutrality and objectivity that does not hold up in practice.
The proponents of this theory believe that the logic and
structure which are attributed to the law grow out of the
power relationships of the society. CLS saw law as a political
instrument which shapes our perception of ‘truth’.
In their view, the law exists to support the interests of the
party or class that forms it and is merely a collection of
beliefs and prejudices that legitimize the injustices of society.
They hold the belief that the wealthy and the powerful
members of society use the law as an instrument for
oppression in order to maintain their place in the hierarchy.
So they advocated the overturn of the hierarchical structures
of domination in modern society and focused on the law as a
tool for achieving this goal.
CLS shares commitments to criticize not merely
particular legal rules or outcomes, but larger
structures of conventional legal thought and practice
and seek to demystify what they see as the numerous
myths at the heart of mainstream legal thought and
practice. The basic idea of CLS is that law is not a
neutral set of rules or practices but politics, an
instrument of power relations and it is neither
neutral nor value free.
Critical theorists therefore engage in particular
critiques of other theoretical approaches to law, such
as law and economics and moral-theory approaches
to legal theory and seek to destabilize the traditional
conceptions of law, and to unravel and challenge
existing legal institutions. According to critical legal
scholars, the dominant legal doctrines and
conceptions perpetuate patterns of injustice and
dominance by whites, men, the wealthy, employers,
and heterosexuals.
The "Crits" argue that the prevailing modes of legal
reasoning pretend to afford neutral and objective
treatment of claims while shielding the structures of
power from fundamental reconsideration. Critical
theorists also maintain that despite the law's claims
to accord justified, determinate and controlled
expressions of power, law fails on each of these
dimensions and instead law mystifies outsiders in an
effort to legitimate the results in courts and
legislatures.
The "critical" dimension of critical legal studies includes
not only efforts to expose defects, but also an affinity
with other theoretical projects and social movements.
Consequently, the CLS has borrowed heavily from legal
realism and includes several subgroups with
fundamentally different, even contradictory, views.
Critical Legal Studies movement gave birth to other
streams of legal thought. The two major offshoots or
subgroups of CLS are:
These days, CLS has clusters at many law schools around the
world.
(a) Feminist Legal Theory
(b)Critical Race Theory (CRT)
Feminist Legal Theory (FLT) (also referred to as
Legal feminism or feminist jurisprudence) which
examines the role of gender in the law and maintains
that law is a tool that maintains (or can undo)
patriarchy. It also deals with the mystification of law
by questioning the apparent belief that contract law
is fair and neutral.
For example, the “bargain” theory of contract
assumes that as long as two or more parties “intend”
to enter into a contract, and that they both have the
capacity to bargain by age, then any contract formed
within this relationship context is not only legal, but
fair. (Ref. fairness of contract which is imposed
statutorily by “implied terms” in US, Canada, UK, etc.)
Critical Race Theory (CRT) is concerned with the role
of race in law and holds the view that law is a tool that
maintains (or can undo) racial domination. It is also
concerned with the idea of inescapable and inherent
racism in the American legal system. It argues that the
perception and experience of the world are determined
by one’s position in the race structure of society. CRT
has a different methodology: instead of analysis, they
often use narrative forms of communication or story-
telling. Up to today, CRT has not received widespread
acceptance in the US. It is still mainly a fringe area of
academic thinking.
Another offshoot of CLS is Postmodernism which is a
critique of the law influenced by developments in literary
theory. Far from an arbiter of right or wrong, law is just
another arena in which power struggles play out; what is
“justice,” anyway? How do we know it exists?
There is another subcategory of CLS that emphasizes political
economy and the economic context of legal decisions and
issues.
Although there are different strands of CLS theory, all the
different strands share some common themes. The common
themes of the different strands of CLS are as follows:
Theme 1: Law is indeterminate
CLS scholars question assumptions about the way law
works in society and elucidate new or previously
disfavored social visions and argue for their realization in
legal and political practices in part by making them part of
legal strategies. For example, CLS scholars agree with the
Legal Realists’ ideas about the indeterminacy of law. They
assert that law is indeterminate or uncertain as opposed to
being a complete system of rules, norms and doctrines.
And they seek to demonstrate the indeterminacy of legal
doctrine and show how any given set of legal principles can
be used to yield competing or contradictory results.
For example, how judges and other legal decision-makers will
always “pick and choose” a doctrine to fit the desired result.
They also agree that the language of law itself is open to
different interpretations and that there is not one single
interpretation of “the law” in any given case. Legal materials
(such as case law and statutes) do not completely determine
the outcome of legal disputes. Although they may have some
impact, there are other factors which are also important. Law
therefore is neither always oppressive nor always liberatory.
The difference lies in the intersection with other structures
and patterns of power in society. Hence the outcome of a legal
dispute will have as much to do with the social context as the
legal reasoning.
Theme 2: All law is politics
CLS scholars expose how legal analysis and legal
culture mystify outsiders and work to make legal
results seem legitimate. CLS theorists argue that law is
not an objective or rational process of impartial
decision-making. Instead, it is just like politics, full of
competing interests, with arbitrary categorizations
that are constantly refined and reworked. Therefore,
neutral and abstract principles, uninfected by politics,
society and personal viewpoint are impossible to keep
out of legal reasoning and decision-making.
“Law is simply politics dressed up in different garb; it
neither operates in a historical vacuum nor does it
exist independently of ideological struggles in society.
Legal doctrine not only does not, but also cannot,
generate determinate results in concrete cases…Legal
doctrine can be manipulated to justify an almost
infinite spectrum of possible outcomes.”
Hence CLS theorists maintain that law and politics
are inseparable and legal decisions are just a form of
political decisions. CLS theorists also maintain (like
Legal Realists) that judicial objectivity is impossible.
Judicial decisions depend mainly upon the social
situation of the judge. Hence they strip judges of
their supposedly disinterested role in society and
urge that more attention should be paid to the social
context of law. In their view, this delegitimizes and
demystifies the law by removing the cloak of mystery
and awe that surrounds the law.
Theme 3: Law serves the Interests of the Wealthy and
Powerful
CLS scholars maintain that it is not possible to understand law
without understanding society’s workings, realities of power
and inequality, wealth and poverty, inclusion and exclusion.
They therefore undertake historical, socioeconomic and
psychological analyses to identify how particular groups and
institutions benefit from legal decisions despite the
indeterminacy of legal doctrines. They maintain that law
serves the interests of the wealthy and powerful by protecting
them against the demands of the poor and the subaltern.
According to them, the legal system, like the political system,
serves to maintain the “status quo” by perpetuating or
continuing the established power relations in society.
At the same time, law depoliticizes the status quo and
makes it appear fair or natural when it is not. For
example, law alienates people such that every time a
person asserts a right against someone else, that
person is alienating oneself from society. This
maintains existing social structures, (whether it is an
advantage or a disadvantage) and transforms them
into a permanent form. Law, therefore, they argue, is
an instrument of oppression used by the powerful
and the wealthy to maintain their place and to
protect their interests.
Philosophy of Law
Stefan Magen, Ruhr-Universität Bochum,
Bochum, Germany
© 2015 Elsevier Ltd. All rights reserved.
The proponents of this theory believe that the logic and
structure which are attributed to the law grow out of the
power relationships of the society. CLS saw law as a
political instrument which shapes our perception of ‘truth’.
In their view, the law exists to support the interests of the
party or class that forms it and is merely a collection of
beliefs and prejudices that legitimize the injustices of
society. They hold the belief that the wealthy and the
powerful members of society use the law as an instrument
for oppression in order to maintain their place in the
hierarchy. So they advocated the overturn of the
hierarchical structures of domination in modern society
and focused on the law as a tool for achieving this goal.
Abstract

A central task of legal philosophy is to provide a general

explanation of the normativity of positive law. Legal positivist
theories pursue this aim primarily by philosophical analyses
(linguistic, conceptual, or ontological) that explain law by
descriptive reference to social practices, mainly of institutional
actors. For example, legal validity is explained by a rule of
recognition, which is a social norm among legal officials.
Naturalistic approaches in legal positivism seek a closer contact
to the social sciences. Natural law theories deny that any
explanation of law could succeed without reference to (true)
political morality.
Since the beginnings of philosophy in ancient Greece, law has
been the object of philosophical inquiry. However, classical
natural law theories in the tradition of Plato, Aristotle, or
Aquinas treated law as part of normative moral or political
philosophy. In the modern age, with the emergence of nation-
states and market societies, law increasingly became controlled
by central- ized political authorities and more separated from
traditional morals and social customs. In the wake of these
developments, a discussion on the concept or nature of ‘positive
law’ emerged in legal philosophy. Jeremy Bentham not only
dismissed inquiries intopreexisting natural rights as
metaphysical ‘nonsense onstilts,’ as is well known, but also
developed a long unpublished analysis of law as commands
(Bentham, 1970[1782]). The ‘command theory of law’ was later
elaborated and published by Bentham’s disciple and legal
philosopher John Austin (1995[1832]).
It became a prevalent view in Anglo-Saxon legal positivism and Austin’s
methodological maxim to keep descriptive analyses of law ‘as it is’ apart from
normative inquiries into law ‘as it ought to be,’ remains the hallmark of legal
positivism. Legal positivism was revived when H.L.A. Hart presented a more
sophisticated analysis of law that drew on sociological hermeneutics and Hans
Kelsen’s ‘pure theory of law,’ an earlier version of legal positivism in the continental
tradition (Kelsen, 1967[1960]; Marmor, 2010). Hart understood legal systems as a
union of primary and secondary rules and introduced the distinction between the
internal point of view ofa participant inthe legal systemand the point of view of an
external observer (Hart, 2012[1961]). Hart’s seminal work sparked a debate between
legal positivism and natural law theories over the concept or nature of law, which
grew into an academic field of its own, with Roland Dworkin’s interpretivism
arguably being its most influential critique and alternative (Dworkin, 1977, 1986).
Today this debate forms a major branch of the philosophy of law (or legal theory or
jurisprudence, respectively) on which this article focuses. Normative inquiries
intoparticular legal doctrines orspecific areas of law form another branch of legal
philosophy, which is not covered here.
Positive Law, Social Facts, and Morality
Positive Law and Social Practice
Legal orders are collections of norms, be it the law of nation-
states, supranational entities or international law. All legal
orderscomprise norms that impose duties to perform or refrain
from certain actions on natural persons or legal entities
(primary rules). In most cases, legal orders also comprise
explicit meta- norms on the creation, change, adjudication and
enforcement of primary rules, in particular norms that
determine legal powers, procedures, and legal personalities
(secondary rules). Legal orders are often, but not necessarily,
organized hierarchically, like the legal systems of nation-
states, which are united by a common constitution and
divided, e.g., into federal law, state law, municipal law.
International law, however, with its imperfectly coordinated
international regimes, often lacks hierarchical integration. Different to
norms endorsed in ideologies or philosophical theories, legal norms
are necessarily grounded in and emerge from actual social practices of
particular collectivities. Without a social practice supporting it,
positive law ceases to exist. Legal norms share this property with
informal social norms, and like them, legal systems usually react to
noncompliance with some form of explicit sanctions (McAdams and
Rasmusen, 2007). But unlike social norms, legal systems are formal
institutions administered according to rules by specialized legal
officials acting in legal capacities on behalf of legally structured
organizations like legislatures and courts. Norms of positive law are
thus tied to the actual behavior of legal officials, often subject to
deliberate change and confined to a particular jurisdiction. In this
regard, positive law exhibits the characteristics of an observable social
fact, located in time and space.
Normativity of Legal Norms
Participants in the legal system, however, tend to treat
legal rules as genuine norms, not identical with the
empirical social facts on which they rest. For example,
lawyers often talk about legal norms as if they were
entities with an existence of their own. To restrict a legal
norm to a mere expression of an actual legisla- torial wish
combined with a credible threat, seems to reduce the full
meaning of the term. Rather, legal obligations also
provide intrinsic normative reasons for action. Following
Hart, this stance toward the law is often called the internal
point of view (Hart, 2012[1961]; Shapiro, 2006).
Through this capacity to provide intrinsic normative reasons, legal
rules appear to exhibit some characteristics that are usually ascribed
to moral norms. Furthermore, lawyers often determine the content
of legal norms in light of normative principles, purposes, or values
that are not explicitly stated in authoritative legal sources. And
sometimes legal norms or judicial reasoning explicitly refer to
standards like ‘equality’ or ‘fairness’ that appear to refer to
(putatively) true moral norms. Thus, positive law also seems to be
inherently interwoven with true morality. Hence, in tying together
factual social practices with (possibly) genuine normativity, positive
law appears to have a puzzling and seemingly dual nature.
Legal Philosophy, Science, and Political Philosophy
 The specific contribution of legal philosophy to the
explanation of legal normativity is controversial and
should be viewed in contrast to other disciplines:
Empirical explanations of the factual side of legal
institutions are a matter of the social sciences and the
philosophical questions pertaining to it should be
addressed by the philosophy of science (Mantzavinos,
2009). The moral merits of positive law should be
judged by normative political philosophy and meta-
ethics. The content of concrete norms in particular legal
orders, as it presents itself from an internal point of view,
is discussed by legal doctrine, which may or may not
draw on other sources like morality
or scientific knowledge in varying ways and degrees. In
contrast, the philosophy of law should, as far as this is
possible, be concerned with providing general
explanations of the normativity of positive law and its
different aspects. In any such account, usually an
explanation of law’s relationship or nonrelationship to
morality features prominently. This applies across
topics, e.g., with regard to the basic elements and
structure of legal orders, legal validity, the nature of
legal obligation, legal interpretation and adjudication,
etc.
Natural Law Theories versus Legal Positivism
Philosophical positions on these issues are usually perceived
against the backdrop of the antagonism between legal positivism
and natural law theories. In general, three explanatory strategies,
either alone or in combination, are employed in this regard. In
natural law theories, the normativity of legal norms is accounted
for (1) by reference to normative, moral ‘facts,’ i.e., some
version of a (possibly or purportedly) true political morality. In
legal positivism, the normativity of law is (2) either explained
by descriptive reference to social facts with ‘normative’ content
like social norms (as in the approach of Hart and most other
Anglo- American variants of legal positivism), or (3) the
normativity of positive law is regarded as a stand-alone
phenomenon that neither lends itself to explanations from social
facts or moral norms, as the pure theory of law of Kelsen holds
(Kelsen, 1967[1960]).
However, despite their fundamental differences, legal positivists
and natural law theorists often agree on the existence of many of
the aforementioned, ostensibly moral characteristics of law. Real
disagreement remains, however, with regard to the interpretation
of these phenomena as either being explicable as social facts or as
necessarily implying true morality. For example, Hart agrees with
natural law theories that obligations stated in valid legal norms
provide intrinsic reasons for actions, but he explicates these
reasons as normative attitudes and hence mental states. Natural
law theorists on the other hand insist that only true morality could
actually provide normative reasons for actions. Thus, the main
habitual obedience. Hart criticizes this reduction as
inadequate because, as he contends, from an internal point
of view legal obligations are perceived as intrinsic reasons
for action. But for Hart the internal point of view does not
necessarily rest on good moral reasons to obey the law but
on an empirical attitude that accepts law as a standard of
conduct. This does not imply that legal positivists always
deny the possibility of a true political morality. In fact,
Austin believed in Divine law and Hart held moral realist
convictions. But legal positivists have to insist that
morality is not necessary for such an account, at least as
far as the existence and content of law are concerned.
Validity in Legal Positivism
Pure Theory of Law
Most radically perhaps, the pure theory of Hans Kelsen
denied that the normative validity of legal systems could be
derived from either social facts or from true morality without
violating Hume’s Law or running into an infinite regress. For
Kelsen, validity is ultimately grounded in what he calls a
‘basic norm’ (Kelsen, 1967[1960]; Marmor, 2010). This basic
norm, however, is neither a social norm nor a norm of Divine
or natural law; it is not even a real norm but only a
presupposition lawyers neces- sarily make in reasoning about
law. Thus, for Kelsen, legal val- idity is merely hypothetical
or ‘transcendental.’
Command Theory of Law
Anglo-American legal positivists, however, tend to
have no objection, in principle, to locating the ultimate
source of legal validity in social facts, namely in social
practice with normative content. Rather than tackling
the general philosophical problem of how a legal
‘ought’ could be derived from an ‘is,’ Anglo- American
legal positivism rather focuses on the substantive
analysis of the social practices from which legal
systems emerge. Before Hart, the prevalent account
was Austin’s version of the command theory, according
to which positive law consists of the commands of a
sovereign (Austin, 1995 [1832]).
The sovereign is a person or a group that receives habitual
obedience from the majority of society but is not in the habit of
obeying anybody else. Legal norms are a particular type of
command issued by the sovereign, namely general and public
orders backed up by the threat of sanctions. The sovereign’s
capability to produce norms rests in his ability to command the
obedience of his inferiors by exercising power. It is widely
assumed that Hart demonstrated the inadequacy of this account
(see Schauer, 2010). For example, in many legal systems there is
no single sovereign with ultimate powers. Also, the concept of
sovereignty can hardly account for the restrictions that
constitutions impose on law-making powers. But first and
foremost, in legal systems, ultimate authority is defined by rules
rather than preceding them.
Hart’s Concept of Law
In his own account Hart replaced authoritative orders with
rules as the essential element of law and introduced the
distinction between primary and secondary rules. Primary
rules impose duties on people and thus perform the function
orders have in Austin’s account, whereas secondary rules
govern the creation, change, and administration of rules.
Thus, legal systems usually comprise secondary legal rules
that explicitly stated in authoritative legal sources but rather
inferred as implicitly underlying them
And in many legal systems, judges, under certain
circumstances, may make reference to what they regard
as morally true without these moral truths being
explicitly laid down in positive law. In all these cases
positive law seems to include social, implicit, or moral
norms that, as such, are not the product of formal law
creation and hence lack the institutional pedigree that is
typically associated with positive law. On this basis,
Dworkin dismissed the rule of recognition as being
incapable of accounting for nonsource-based norms
and, in particular, for legal principles.
Legal positivism’s reaction to this criticism was to split
into two camps, exclusive (or hard) and inclusive (or
soft) legal positivism. Exclusive legal positivism insists
that norms of positive law have to be based on
authoritative sources. Never- theless, the rule of
recognition may empower legal officials to treat
customary law, legal principles, or moral arguments as
part of the law. This, however, does not include social
or moral norms among the sources of law, but rather
confers the authority (and often the discretion) on
judges to make reference to extralegal norms and
thereby create new law.
The judicial deci- sion is hence to be regarded as the
source of positive law, not as the custom, principle, or
moral norm. Inclusive legal positivism, on the other
hand, takes a more lenient view of the rule of
recognition. According to this view, the rule of
recognition may include social or moral norms in the
sources of law. For example, the rule of recognition
could include a proviso that grossly unjust statues are
void ab initio. Thus, in its inclusive version, practical
differences between legal positivism and natural law
theories almost vanish.
The ultimate explanation conditioning legal validity on
morality, however, would still be categorically
different: the inclusion of morality rests in the first
instance on a contingent consensus among legal
officials, in the other on a necessary connection of
positive law with true morality.
Natural Law Theories
Moral Realism and the Connection Thesis

Many, but not all theories in normative political philosophy

suggest normative standards of political morality that are
intended for, or could be applied to the evaluation of positive
law. Classical natural law theories find these normative
standards in putatively universal moral norms that exist
independent of human will and recognition (Aquinas, 2006
[1265–1274]), a view that implies ambitious epistemolog-
ical and metaphysical assumptions. Modern accounts of
political morality tend to avoid them and would rarely be
counted as natural law theories in political philosophy.
Natural law theories in legal philosophy, however, are defined
more specifically as a particular thesis about the relationship
between positive law and political morality.
 Natural law theories in legal philosophy specifically hold
that positive law, as such, cannot be properly explained for
methodological and/or substantial reasons, without
reference to true political morality. Natural law theories thus
include two elements: (1) they endorse a substantive
position on political morality with regard to the law
(‘natural law’) and thus assume at least the possibility of
true political morality (moral realism), and (2) they endorse
a thesis about a necessary connection between Doctrine.’ It
claimed that grossly unjust laws should not be
acknowledged as legally valid; and laws that did not even
attempt to bring about justice should be denied the quality
of law altogether (Radbruch, 2006[1946]; Alexy, 2002).
Social Facts and the Specification Problem However, none
of these natural law theories denies the relevance of social
practice. Rather, they ascribe to social facts the role of fixing the
specific content of legal norms within the confines of political
morality. Social facts could, for example, serve to adapt universal
natural laws to the circumstances obtaining in a particular
jurisdiction. In an interpretive account, facts about institutional
legal practices are needed in order to infer the moral claims
inherent in these practices. Nevertheless, for interpreti- vism, facts
about institutional practices are insufficient to account for the
specific content of law, because the content of law is determined by
what follows from principles that best explain and justify past
institutional practices. On both accounts, social facts are
insufficient to account for the validity of positive law.
Methods

Two different kinds of methods (or some combination of

them) can be employed in arguing for a concept of law,
descriptive methods of philosophical analysis, or normative
methods of political philosophy. Although descriptive
methods dominate in legal positivism and normative methods
are common in natural law theories, methods and substantive
positions do not line up perfectly. For instance, legal
positivism is sometimes defended on normative grounds as
well, e.g., because a positivist concept of law is thought to
foster legal certainty and strengthen the rule of law.
Proponents of natural law theories, on the other hand, often
argue that legal positivist theories fail to account for important
features of law even on purely descriptive–analytical grounds.
In this vein, Dworkin criticized Hart’s notion of a
rule of recognition as being incapable of explaining the
presence of unwritten legal principles. The methods of
normative political philosophy are beyond the scope of
this article. A brief discussion of descriptive analyses,
however, is warranted because it is not self-evident why
explanations of positive law that employ references to
social facts are philosophical in nature. All social facts
that legal positivist theories draw on could be the object
of study in the empirical social sciences, e.g., sociology
of law, legal psychology, or economic analysis of law.
Linguistic Analysis
From the publication of Hart’s ‘Concept of Law’ until not long ago,
legal philosophy usually has been set apart from social science
approaches by its philosophical method of a ‘linguistic analysis.’
Hart himself described his method as being both ‘analytical
jurisprudence’ and ‘descriptive sociology’ (Hart, 2012 [1961]:
Preface iv) and quoted ‘ordinary-language’ philosopher John
Langshaw Austin, stating that “a sharpened awareness of our
words” may be used “to sharpen our perception of the phenomena”
(Hart, 2012[1961]: p. 14). Thus it was a common assumption that
Hart was committed to ‘ordinary language’ philosophy and that the
reference to sociology rather referred
to the empirics of language usage. In ‘ordinary language’ philosophy,
an analysis of the concept of law would imply an analysis of the
ways in which the word ‘law’ functions in rule- governed linguistic
practice among competent speakers of a natural language
(‘language games’), based on observations of that practice and
purportedly shared linguistic intuitions (Marmor, 2013). But by now
there seems to be broad agreement that few philosophical insights
emerge from tracking the meaning of the word ‘law’ in our linguistic
practices and that, contrary to Hart’s own insinuations, linguistic
analysis was neither the kind of philosophical analysis he actually
undertook nor the analysis that legal philosophy should pursue. In
any case, as a substantive thesis on legal orders and their relation to
morality, legal positivism is not committed to a particular method
and is compatible with different semantic, ontological, or
epistemological positions.
Conceptual and Ontological Analysis
The method that should replace linguistic analysis is a
subject of current debates (Coleman, 2002). The
question concerns not only the method but also the
proper object of legal philosophy. With regard to the
latter, Josef Raz proposed that instead of the ‘ordinary
language’ meaning of law, legal philosophy should
study law as part of the ‘self-understandings’ of a
society (Raz, 2005). The concept or nature of law thus
does not refer to the institution of law as such but to a
society’s self-understandings with regard to law
(Marmor, 2013).
Alternatively, law itself, i.e., the empirical social institution
grounded in communication, behavior, and mental states,
could be the object of analysis. Since shared beliefs and
attitudes may play a vital role in constituting law and thus be
part of the ontology of this social institution, analyses of
shared self-understandings may also be involved in the
analysis of law as a social institution (Leiter, 2013b), although
they do not exhaust it. No consensus exists, however, as to
what the analyses of either type would imply in terms of
philosophical methodology and how these would differ from
methods of empirical social sciences. Nonlinguistic,
conceptual, or ontological analysis and methodological
naturalism are two important candidates, so far.
Appropriate methods of nonlinguistic analyses depend
on their subject and aims. If the purpose lies primarily
in identi- fying, clarifying, and/or enlightening the
societal concept of law, it might strive to remove
ambiguities and contradictions, make implicit
assumptions explicit, and/or eliminate implausible
metaphysical presuppositions. If conceptual analysis
aims at an ontological explanation of the phenomenon
itself, it might seek to identify essential, or at least,
important general properties of law.
Such an analysis could imply, for example, breaking up
the complexities of legal orders into simpler conceptual
elements (e.g., imperatives, primary and secondary
rules, or basic concepts) or into ontologically more
fundamental phenomena (e.g., social norms,
conventions, or joint plans) or working back to prior
principles (e.g., to the separation of law from morality).
In this vein, Andrei Marmor proposed a
reinterpretation of Hart as a reductionist analysis of
law’s essential properties (Marmor, 2013).
Sometimes intuitions are advocated as the specific kind of
evidence philosophical analysis should draw on. But in legal
philosophy it is questionable how intuitions could help to
establish descriptive adequacy, once the realm of linguistic
analysis is left. Analyses in legal philosophy rather seem to
rest on empirical generalizations and can thus hardly claim
the self- evident, a priori necessity invoked in other areas of
philosophy. Rather than purporting to show necessary or even
essential properties of law, legal philosophy might be content
with demonstrating general, important, or characteristic
features of positive law. Also, legal philosophy might keep
closer contact with the social sciences, as Hart was influenced
by the sociological hermeneutics of Max Weber.
Naturalism in Legal Philosophy
Reliance on the social sciences is taken one step further
in phil- osophical naturalism. According to
methodological naturalism, philosophy should proceed
in continuity to the empirical sciences by emulating
their methods and/or drawing on their results (Leiter,
2012). Usually this implicates the natural sciences, but
in case of legal philosophy the focus lies on the social
sciences. Naturalism could mean replacing philosophy
with science or locating philosophy at the highly
abstract, conceptual, or foundational end of science.
Both approaches may, however, be incapable of
addressing questions pertaining to the relation between
law and true morality, since true morality is beyond the
purview of scientific methods. But naturalism may be
apt for explaining the relationship between the law’s
normativity and the social facts it is grounded in.
Questions such as these were addressed from a
naturalistic point of view in Scandinavian legal realism
(Leiter, 2013a). According to Axel Hägerström’s
austere naturalism, only natural things exist and
concepts that do not refer to observable facts are
meaningless (Hägerström, 1953).
Accordingly, legal concepts like ‘duty’ or ‘right’ are
dismissed as meaningless and the normativity of law
remains a ‘mystical force,’ since it does not exist in the
real world. In this extreme view, legal doctrine – much
like theology – is accused of talking nonsense about
non existing objects. Alf Ross later gave an influential
naturalized account of law that acknowledged the
normativity of legal norms and explained their
binding force in terms of behavior and mental states
(Ross, 1959).
Normativity, in his view, rests in the fact that legal
norms are observed with a psychological sense of
obligation. These early naturalist approaches to legal
philosophy were heavily criticized by Hart and
naturalism largely fell into disfavor until it was brought
back to the forefront by Brian Leiter (Leiter, 2007). He
argued, for example, that the central tenets of legal
positivism, and in particular those of Hart, are best
interpreted in naturalist terms (Leiter, 2013b).
Reductionism, Eliminativism, and Emergentism
Leiter and Marmor explain (1) legal norms by
reference to underlying social practices and (2) social
practices by reference to behavior and mental states. In
doing so both offer reduc- tionist theories, because they
assert that one set of phenomena can be accounted for
by another set of phenomena (Marmor, 2013). But they
differ in the methodological justification of their
account, i.e., whether they attribute the success of their
explanation to philosophical analysis or to
compatibility and continuity with social sciences.
The second aspect of reducing social phenomena to
behavior and mental states concerns the well-known
dispute between individualist (reductionist) and holistic
(emergentist) theories in social science. Critical with
regard to the success of reductionist legal positivist
theories, and disputed in legal philosophy, is the
possibility of reducing law’s normativity to social
norms. In general, three possible relations can be drawn
(O’Connor and Wong, 2012) between legal norms and
social practices, and each could be thought of as either
an epistemological or an ontological relation:
First, an eliminative reduction would regard the
normativity of law (or some aspects of it) as
ontologically inexistent or epistemologically
inaccessible to rational analysis, as Hägerström’s
radical legal realism did. Following this reasoning,
there is nothing that needs to be explained. Secondly,
one could assert that legal norms exhibit properties like
‘validity’ or ‘normativity,’ but hold that these properties
can be fully explained by underlying social practices
(like microeconomics explains aggregate outcomes in
terms of individual behavior).
This seems to be the kind of reductionism implied by
Leiter and Marmor. Thirdly, one could hold that
‘validity’ or ‘normativity,’ as properties of legal norms,
cannot be fully explained by social facts, either because
we lack the knowledge necessary to do so or because
normativity is an emergent and hence irreducible
property that ontologically supervenes on the
respective social practices. Then reductionism would
fail.
But this would not necessarily mean that legal
positivism is wrong and a natural law theory true,
because the irreducible property does not have to
consist in true morality but could just be the
normativity of law. Of course, different aspects of legal
norms could require different versions of reductions.
For example, it is a plausible view that legal norms do
not exist as incorporeal entities but that they do exist
as aggregates of behavior and mental states.