23/1/08

PHILOSOPHY OF LAW ( 1st. PART )

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Philosophy of Law ( 1st. PART )

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



Analytic Jurisprudence


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


Natural Law Theory


All forms of natural law theory subscribe to the Overlap Thesis, which asserts that there is a necessary relation between the concepts of law and morality. According to this view, then, the concept of law cannot be fully articulated without some reference to moral notions. Though the Overlap Thesis may seem unambiguous, there are a number of different ways in which it can be interpreted.
The strongest form of the Overlap Thesis underlies the classical naturalism of Aquinas and Blackstone. As Blackstone describes the thesis, "This law of nature, being co-eval with mankind and dictated by God himself, is of course superior in obligation to any other. It is binding over all the globe, in all countries, and at all times: no human laws are of any validity, if contrary to this; and such of them as are valid derive all their force, and all their authority, mediately or immediately, from this original" (1979, p. 41). In this passage, Blackstone articulates the two claims that constitute the theoretical core of classical naturalism: 1) there can be no legally valid standards that conflict with the natural law; and 2) all valid laws derive what force and authority they have from the natural law. On this view, to paraphrase Augustine, an unjust law is no law at all.
Related to Blackstone's classical naturalism is the neo-naturalism of John Finnis (1980). Finnis believes that the naturalism of Aquinas and Blackstone should not be construed as a conceptual account of the existence conditions for law. According to Finnis (see also Bix, 1996), the classical naturalists were not concerned with giving a conceptual account of legal validity; rather they were concerned with explaining the moral force of law: "the principles of natural law explain the obligatory force (in the fullest sense of 'obligation') of positive laws, even when those laws cannot be deduced from those principles" (Finnis 1980, pp. 23-24). On Finnis's view of the Overlap Thesis, the essential function of law is to provide a justification for state coercion. Accordingly, an unjust law can be legally valid, but cannot provide an adequate justification for use of the state coercive power and is hence not obligatory in the fullest sense; thus, an unjust law fails to realize the moral ideals implicit in the concept of law. An unjust law, on this view, is legally binding, but is not fully law.
Lon Fuller (1964) rejects the idea that there are necessary moral constraints on the content of law. On Fuller's view, law is necessarily subject to a procedural morality consisting of eight principles: (P1) the rules must be expressed in general terms; (P2) the rules must be publicly promulgated; (P3) the rules must be prospective in effect; (P4) the rules must be expressed in understandable terms; (P5) the rules must be consistent with one another; (P6) the rules must not require conduct beyond the powers of the affected parties; (P7) the rules must not be changed so frequently that the subject cannot rely on them; and (P8) the rules must be administered in a manner consistent with their wording.
On Fuller's view, no system of rules that fails minimally to satisfy these principles of legality can achieve law's essential purpose of achieving social order through the use of rules that guide behavior. A system of rules that fails to satisfy (P2) or (P4), for example, cannot guide behavior because people will not be able to determine what the rules require. Accordingly, Fuller concludes that his eight principles are "internal" to law in the sense that they are built into the existence conditions for law: "A total failure in any one of these eight directions does not simply result in a bad system of law; it results in something that is not properly called a legal system at all" (1964, p. 39).

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