Kelly
Jurisprudence
Spring 2011
Moral Philosophies and their Influence on Legal Theory
Type of Moral Theory
Deontological
Consequential
Teleological
Historical Name
Kantianism
Utilitarianism
Aristotelianism
Primary Moral Question
Is the action right?
Is the result good?
What makes for a good life?
Purpose of the Law
Protect the Public Interest
Maximize Total utility
Promote the Common Good
Theory of the Law
Natural Law
Legal Positivism
Interpretivism
As offered by…
Aquinas
Austin & Bentham
Dworkin
Theory of Natural Law
v Morality is a necessary criteria for the existence of a valid law
v Immoral Legal systems are not valid legal systems
v The Higher unwritten Moral Law is just as much law as enacted law
Cicero:
v Law and Morality are inseparable
v Law is a product of God
v Immoral laws are not law at all à Moral correctness is the purpose of law
Thomas Aquinas (Follower of Aristotle):
v Law promotes the common good
v Law must be promulgated to have binding force
v Natural Law :
Ø Instilled in humans by God
Ø Derived from the natural appetite of humans to the common good
v Human Law:
Ø Supplements natural law
Ø Must be properly promulgated
Ø From naturally known principles we draw conclusions based on human reason
Ø Binding law cannot be unjust
Ø Must not contradict the natural law – but it can be different
Lon Fuller:
v Internal Morality
Ø External Morality à deals with questions of substantive justice
Ø Internal Morality à focuses on the natural laws inherent in the practice of subjecting human conduct to the governance of rules.
v Good ways and bad ways to make laws à if you do it badly enough, they’re not laws
v 8 Desiderata for Making Law: Laws must be…
§ General
§ Communicated
§ Understandable
§ Applied as Announced
§ Not Self-Contradictory
§ Not Retroactive
§ Not Impossible to Obey
§ Not always Changing
Natural Law v. Legal Positivism: Under the Rule of Recognition
v Natural Law claims that any ultimate Rule of Recognition must prevent an unjust law from being considered a law.
v The Rule of Recognition must have moral content
Ø Aquinas believes – however – that Positive Law is necessary b/c:
§ Natural law does not cover the problems of the communal life; and
§ The need for compulsion – to force selfish people to act reasonably.
v Legal Positivism denies that the moral content of law must ever be a criterion in any ultimate rule of recognition.
Ø Derives its validity from Natural Law, but it is not a copy of it because there is room for creative freedom
Ø They work with the moral truth, but the law depends on what the sovereign says it is
Legal Positivism
v Law is a human institution à Rules made either deliberately or unintentionally, by human beings
v Denies the necessity of a law-morality connection
v What legal systems ought to be or ought to do is not the same as what legal systems in fact are
v Hobbes à law is the indispensible product of unquestioned political authority (Command Theory)
v Bentham à Utilitarian à Command Theory: Law is not identified by its substantive moral content but by the presence of commands from sovereign to subject.
John Austin: (Sovereignty, Command, & Obedience)
v Law à General commands issued by Political Superiors to Political inferiors
Ø Must be general commands
v Source – Not Content, is what makes a rule “Law”
v Every positive law is set by a sovereign person/body of persons to members of the society wherein that sovereign person/body is supreme
Ø The society is bound because they are liable to some evil if they disobey it
v Differs from Natural Law à
Ø To say that human laws which conflict with the divine law are not binding or are not laws is Nonsense.
v Divine Law is NOT law.
H.L.A. Hart:
v Law à Rules identified and accepted as law
v Legal Systems have both Primary and Secondary Rules
Ø Primary Rules: Govern Conduct
§ 3 Defects with having only primary rules:
1. Uncertainty: resolved by Rule of Recognition
2. Static Character: solved by Rule of Change
3. Inefficiency of diffused social pressure to obey: Rule of Adjudication empowers authoritative determinations as to whether a primary rule has been broken.
Ø Secondary Rules: Govern the Making, Changing, and Application of primary rules
§ Rule of Recognition: what is law.
o Not an actual rule but an accepted social fact
o Substitution for an absolute Sovereign under Hobbes/Austin
§ Rule of Change: how law can change.
§ Rules of Adjudication: how law is applied.
Frederick Schauer (Author):
v Positivism is the opposite of natural law (denies any necessary connection b/t law and morality)
Ø Positivisim is about the idea of Recognition
v Presumptive Positivism à refers generally to the force possessed by a rule, such that the rule is to be applied unless particularly exigent reasons can be supplied for not applying it.
Ø A way of describing a degree of strong but overridable priority within a normative universe in which conflicting norms might produce mutually exclusive results.
Ø Most accurate description of rules w/in modern legal systems
DWORKIN RE: LEGAL POSITIVISM
Description
Response
· Law = Set of rules identified by pedigree
· When Rules run out judges have discretion (strong) to create new rules
· Legal rights cone only from rules
· Law includes principles and policies as well
· Judges change or create rules by using principles
· Legal rights flow from principles
Interpretivism – Law as Integrity
Dworkin:
v The Law à includes principles and policies as well as rules
v Law is made by interpreting political morality as expressed in principles (fairness)
Ø Emphasizes Principles rather than Policies as the building blocks of law
§ Policies express collective goals that balance competing goods
Ø Principles are a generic term to ref
zsche à Founder
v John Dewey – the question of what law is then reduces itself to a question of what is believed by the judge that the regulations and practices should be
Duncan Kennedy:
v Believes that judges use legal reasoning to make the case come out the way they think it ought to come out.
Ø What judges actually do – he does not focus on what they should do
v Judges attack the law to make the rules make sense to the outcome they want
v Perspectivism àthere are many different possible perspectives which determine any possible judgment of truth
Moral Obligation to Obey the Law:
· There is always a LEGAL obligation to Obey the Law
o It is often, but not always in one’s self-interst to obey the law b/c of punishment.
Arguments Based on Consequences
v The right act is always the one that causes the greatest good for the greatest number
The Overall Theory: a person has a prima facie moral obligation to do an act if that act has better overall consequences than any alternative
The Harm Theory: A person ahs a prima facie moral obligation to do an act if not doing that act would cause some harm to someone
The Social Harm Theory: A person has a prima facie moral obligation to do an act if not doing that act would cause some harm to someone or to society.
The Risk Theory: A person has a prima facie moral obligation to do an act if not doing that act causes some risk of harm to someone or to society
Utilitarianism
The General Obedience Theory: A person has a prima facie moral obligation to do an act if and only if not doing that act would violate a rule that it would be disastrous for people to disobey generally.
The Unqualified Rule: Obey the Law.
The Qualified Rule: Obey the law except when disobeying the law has better overall consequences.
The General Acceptance Theory: A person has a moral obligation to do an act if and only if not doing that act would violate a rule that it would be best for people to accept generally
Arguments Based on the Past
Gratitude: People have a prima facie moral obligation not only to feel grateful but also to do something to show gratitude to their benefactors
Social Contract or Promise: In order to generate an obligation to obey every law, the promise must be a promise to obey every law, good or bad
– Tacit Promise – consent by silence – only binding when they are made knowingly without coercion
– Residence – signals consent
– Voting – a type of tacit promise
