JURISPRUDENCE STITH SPRING 2008
TOPIC I: What use is Jurisprudence (Part I)
*Definition
-jurisprudence is defined as the philosophy of law, or “the love of wisdom”
-once the law is acknowledged to exist, the law acquires authority over us as individuals and as a community
-when engaging in philosophical thinking, we must try to understand what we are examining in as deep of a way as possible
*The authority of philosophy over law
-old idea of the “rule of law” (the idea that the law comprises a consistent system of rules sufficient to decide all cases) is founded on philosophical assumptions regarding the nature of reason, language, obligation, and truth
-these assumptions have a profound effect on judicial decision-making
-lawyers were once forced to spend much time on the logical analysis of concepts b/c cases were thought to be decided on the basis of consistency with a total system of legal thought
-lawyers were experts on argument rather than on consequences of the decisions
-thus lawyers and courts were orderers who too social demands and made sense of them so that
a common or public body of thought emerged instead of individual judgments
-note that if the rule of law is a firm element of public opinion, legislation and jurisdiction will tend to approach it more and more closely
-but if it is represented as an impracticable and undesirable ideal and people cease to strive for its
realization, then it will rapidly disappear
-if law is considered to be an instrument of power rather than reason, and of usefulness rather than truth, we would not really need lawyers at all
-all experts on data-gathering and predication would be better decision-makers than lawyers or judges
b/c they are not really good at anything except argument
TOPIC II: Dialogue b/w Pericles and Alcibiades
*Xenophon (law as force)
-law is just a kind of coercion at least for a substantial number of people in the legal system
*Alcibiades’ argument
(1) major premise
-where there is no consent, there is mere force
(2) minor premise
-even in a democracy, there I no consent by a minority
***thus even in a democracy, law amounts to mere force as to those who have not consented to it
*Refuting the minor premise argument
(1) response
-minorities, do in fact consent to obey the majority
(2) response
-minorities consent to be coerced
(3) response
-minorities previously consented to being coerced if they lost the vote and later broke
the law (“social contract” idea; you must consent to the social contract or die)
***Stith argues that consent alone is not sufficient for legal obligation
-there must be something more to make consent binding since there must be a basis for
the duty for people to keep their promises
*Refuting the major premise argument
-consent may not be necessary for legal obligation b/c even w/o consent, law and lawful force may
be quite different from mere force
*there may be ways other than consent to distinguish law from mere force and thus to make law
legitimate
TOPIC III: Pieper’s “The Philosophical Act”
*The “workaday” world
-Pieper says that when we philosophize, we leave the “working” world
-he seems to mean leaving behind “work” in the sense both broad and specific
-he might mean going beyond the entire everyday sphere of life where all of our actions and thoughts are
clearly and directly useful in achieving some taken-for-granted goals
*what does it take to engage in philosophy?
-you do not need to go anywhere extraordinary; you should just take a step back and look at the
things around you in your everyday life
-philosophy not only does not have to go to the unusual and weird places to occur, it cannot go
to these places to successfully take place
-the everyday world has a uniform flatness to it; even its satisfactions do not exhilarate bur rather seem to tighten people down insofar as the find meaning and security in them
-but people are “secure” only b/c they are “bound” by these activities
-in order to escape from everydayness, one’s needs cannot become infinite, nor can the accumulation of wealth occupy all of a person’s time
*Why do we not use philosophy more?
-it involves danger and one who wonders “loses his footing”
-man needs a roof of the familiar over his head and therefore cannot ever entirely escape the “workaday”
even apart from the need to earn a living
-therefore, the turn to philosophy is not so much a search for order and system as a stepping out of the order and system which people “already have” in their everyday lives
-people turn fro the ordered and useful, from the “world as a resource” so they are left w/ resources and
face to face with reality
*Three prerequisites to learn what law is
(1) a desire to know the law, not just to know about some individual laws
-the only way to know law in its totality is to grasp its unity and essence
(2) letting oneself be puzzled
-only by worrying about the reading and understanding of the law will help one philosophize
(3) a willingness to accept our inevitable future without giving up
-philosophy has its goal only in hope, it never achieves certain or ultimate truth
-philosophy may achieve wisdom or truth but it can never know that it has achieved them
***only if we believe that there are knowable answers to our questions, but that we may not yet have found them can we continue to philosophize
TOPIC IV: Austin and Legal Positivism
*Legal Positivism Defined
-core claims are the following:
(1) laws are rules made, whether deliberate or unintentionally, by human beings
(2) there is no inherent or necessary connection b/w the validity conditions of law and ethics or morality
*a big idea is that legal validity has no essential connection with morality or justice
-human law (positive law) is thought to derive all of its authority from natural law, but it is not entirely
deducible from natural law (ex: natural law tells us not to harm each other, but it does not tell us on
which side of the road to drive in order to accomplish this)
*Outline of Austin’s scheme
(1) Laws “properly so called”
-broken down into: (a) laws of God (divine law), or (b) human laws
-human laws are broken down into: (a) “positive laws” (those simply and strictly so called) or laws set by
political superiors, or (b) laws set by men not as political superiors
(2) Laws improperly so called (not commands)
-broken down into: (a) laws by close analogy (moral law), or (b) laws by remote analogy (laws of physics)
-laws by close analogy relate to “positive morality,” and positive morality relates back to laws set by men
*Austin’s views
*basic idea of Austin is that “might makes right” and that law is a command backed by threats to those that are in the habit of obeying, and that there must be a sovereign at the top that gives the laws
-provided that a law is properly formed, in accordance with the rules recognized in the society concerned,
it is a valid law, whether or not it is considered “just” by some other standard
***Austin attempted to separate moral rules from “positive law”
-“positive law” is basically defined law as the power to control others
-as to what is the core nature of law, Austin’s answer is that laws are commands originating in the sovereign
***Austin clarifies the concept of positive law (man-made law) by analyzing constituent concepts of his definition and by distinguishing law from other concepts that are similar:
-“commands” involve an expressed with that something be done, and “an evil” to be imposed if that wish is
not complied with
-“rules” are general commands (applying generally to a class), as contrasted with specific or individual
commands
-positive law consists of those commands laid down by a sovereign to be contrasted with other law-givers,
like God’s general commands and the general commands of an employer to an employee
-the “sovereign” is defined as a person (or determinate body of persons) who receives habitual obedience
from the bulk of the population, but who does not habitually obey any other (earthly) person or institution
***the basis for laws are commands/orders
-commands do not need to be just to be followed, but commands are still made up of rules and when they are applied to facts, case decisions are then given
-law does not need to come from the “justice” aspect of morality, it just comes from whoever is in power at the top
-his view wants to eliminate morality as a necessary source of law
-law need not apply to a class, but may simply apply to particular individuals
-law may be a product not of reason, but solely will
***whatever rules the sovereign wills and commands are law, no matter how irrational or arbitrary they are
-b/c Austin’s idea takes justice out of law, he allows the legislature to single out individuals as long as it gives out standing orders backed by threats
-Austin thought that all independent political societies, by their very nature, have a sovereign
-his view gets rid of the “reason” aspect of law; law is just the will of the legislature, and this is why law can be simply arbitrary under this view
-his view keeps the idea of “
(allowing laws to be varied)
(b) rules of adjudication (to resolve legal disputes)
(c) rules of change (allowing laws to be varied)
-a rule is “valid” if it is shown to be a rule by a higher secondary rule
-Hart notes that the “ultimate” secondary rule, the one that validates everything else might not be valid;
it is just accepted
-an “accepted” rule need not be validated nor imposed by force
*Hart’s ideas about coercion
***by showing that the highest legal authority must be a rule rather than a person, Hart also claims that legal “obligation” (duty) may exist w/o any coercion at all, for a rule cannot enforce itself
-this means that a rule of recognition (like the Constitution) may contain legal duties in addition to
disabilities (though it might overlap with disabilities)
*Hart’s Rule of Recognition
*the “rule of recognition” is the main way to explain how rules are related to each other
***the “rule of recognition” is a power-conferring rule*** ( rule of recognition for Hart = the sovereign for Austin)
-it may contain “disability”-type limits
-therefore, the rule of recognition could be an example like either of these:
-“the king has the power to make any kind of law, unless he seeks to limit freedom of speech”
-“whatever the king says is law, unless he seeks to limit freedom of speech”
-but note that disabilities make a practical difference only if they are enforced, which means that the privates and others who have legal immunities must refuse to obey the King if he tells them to shut up
-Hart says that a “rule of recognition” could be unlimited
-Hart says that it could grant unlimited power, which is not limited by either duties or by disabilities
-note that the “rule of recognition” for Hart is itself dependent upon “acceptance”
-if we “accept” the rule for moral reasons, then we are edging back into the “natural law” camp which Hart
wants to avoid
-but if we “accept” the rule b/c of external pressure, we may be back to a system that is close to what
Austin viewed
***NOTE***
-the weakness in Hart’s theory is that there is no rule that tells us what the rule of recognition is
*What does “acceptance” of laws mean
-Hart seems to say that it refers to motive b/c he contrast the internal “accepting” citizen or official with the “external” person who goes along with the rules only when he has a fear of “social pressure”
-Hart does not seem to require consent for acceptance
-Hart thus does not have a normative theory upholding free choice or majority rule or the like as a basis
for law
-if someone asks us why we “accept” a given rule, we might become aware of the following ideas:
-whether an accepted rule feels like obedience to a threat or to a higher rule
-whether it feels “natural” or like a custom as “second nature”
-whether the acceptance of rules equivalent to the experience of freedom
-Hart seems to be correct that the ultimate norm of a system usually appears from the internal point of view only tacitly and rarely or never as sort of a true fact
*How does Hart claim the existence of an ultimate rule of recognition is to be proven?
-he treats it as an external question of fact, based on overwhelming group behavior, especially of officials
-one cannot personally say that what they think and act upon exists unless one also shares their belief
-Hart asserts that whether a particular rule is considered law depends on how many people accept it
-Hart seems to wish to give us a way to prove that a certain rule must be accepted by someone else who does not yet accept it
-Hart’s theory refuses to turn explicitly to any moral or other “higher” laws to resolve disputes as to the “rule of recognition”
