Unit 1 – Introduction to Philosophy of Law What is law? How do we begin to talk about what law is?

A way to begin….. Commonplaces: Sets of everyday facts about a given subject matter The author uses these as a starting point – what are the commonplaces we hold about law? Would you agree with these commonplaces? Three “commonplaces,” or everyday truths about law that serve as a starting point for investigating philosophy of law are (1) law is a social phenomenon; (2) law is authoritative; and (3) law is for the common good. Philosophical discussions about law often can be related to one or more of these three commonplaces.

Law as a social phenomenon (3 of 20) (1) Law is a social phenomenon because it depends at least in part on social facts – facts concerning the manner in which persons interact. In a legal system people interact with each other in various roles such as citizen, legislator, judge, attorney, police officer, and the like.

Is law ONLY a social phenomenon? Whether law is only a matter of social fact is a disputed question in philosophy of law. (remember this – later we might encounter some philosophers who argue law is nothing but a social phenomenon

(2) Law is authoritative… (5 of 20) Law is authoritative because a role of law is to decide certain questions within a certain domain. Authority can be theoretical authority over belief or practical authority over action. Law is concerned with practical authority.

Genuine v. De facto authority Practical authority can be genuine or de facto. Genuine authority means that the orders, commands, and so forth give genuine reasons to act in the way commanded. Genuine authority merits deference. De facto authority means people will act as if there is reason to obey the authority, though the reasons to obey are not genuine. De facto authority is given deference, regardless of whether it merits deference.

Does it matter? An important question in philosophy of law is whether the law is genuinely practically authoritative (MERITS DEFERENCE) or de facto practically authoritative (IS GIVEN DEFERENCE REGARDLESS OF WHETHER MERITED). Note how this goes to the nature of the authority that law has or should have…

Legal Positivism (8 of 20) Social facts: Non- evaluative, subjective facts involving interaction between subjects. Legal Positivism is the thesis that that the existence and content of law depends on social facts and not on its merits. (i.e., it’s just an exercise of power or custom)

(3) Law is for the common good How do we interpret the “common good”? Who decides? What is “good”? What is “common good”? What values and objectives are appropriate aims for law? In other words, what are we trying to accomplish through law?

To review, our three commonplaces are….. (1) law is a social phenomenon; (2) law is authoritative; and (3) law is for the common good. Philosophical discussions about law often can be related to one or more of these three commonplaces. (and that’s what we’ll be doing often during this course)

John Austin Austin is an important thinker in philosophy of law Many subsequent thinkers’ theories are in response to Austin’s views or problems and issues posed by his views. Stanford Encyclopedia of Philosophy: “John Austin is considered by many to be the creator of the school of analytical jurisprudence, as well as, more specifically, the approach to law known as “legal positivism.” Austin's particular command theory of law has been subject to pervasive criticism, but its simplicity gives it an evocative power that continues to attract adherents. “

Who was Austin? (12 of 20) John Austin (1790– 1859) practiced law beginning in 1818, but he took on few cases, and quit the practice of law in Austin then was appointed to the first Chair of Jurisprudence at University of London. Austin was the first systematic exponent of “legal positivism” Legal positivism asserts or assumes that it is both possible and valuable to have a morally neutral descriptive theory of law.

What does John Austin think law is? John Austin describes the social fact of law primarily as patterns of commanding and obeying. The commands are general, rather than to a specific to a given occasion, and enforced by a superior with the capacity and willingness in inflict sanctions for noncompliance. Compliance must be habitual

Legal positivism v. natural law Legal positivism asserts or assumes that it is both possible and valuable to have a morally neutral descriptive theory of law. (Austin would be an example) The main competitor to legal positivism is natural law theory. According to natural law legal theory, the authority of legal standards necessarily derives, at least in part, from considerations having to do with the moral merit of those standards (St. Thomas Aquinas, to be discussed later, would be an example)

Austin’s views on sovereign power… The superior enforcing the law is sovereign (e.g., in England at that time, the king), meaning he owes no duty of compliance to others. Those who are not sovereign are subjects. To summarize, law consists of general commands issued by sovereigns to their subjects.

Question: is this true in US? (16 of 20) US government divides power into three branches. Each branch acts as a check on the other Officials are empowered by people through elections In this way, our system tries to avoid the Austinian conclusion that sovereign power is answerable to no one. Question: does it work? (let’s discuss)

Back to Austin…. Austin believes it is a social fact that laws do not necessarily have to serve the common good. Do you agree? They ought to maximize social well-being, but it is not necessary in order for law to have authority. The authority of law comes from might, the ability to impose sanctions for noncompliance. Do you agree?

Criticisms of Austin include…. (1) not all law is in the form of commands (e.g., contract law – but can we say that the power to enforce contracts in a sense makes it like a command?) (2) some laws exist in order to create further law (e.g., power of an official or body to declare law)

And… (3) if reason for compliance is fear of sanction, authority is of “wrong” kind (gunman and robbery analogy, law as a mere “threat- maker”) Is it troubling to you if authority of law is nothing more than might?

And … (20 of 20) (4) if law need not be for the common good, there is no moral constraint on what the law can be – it is merely social fact. This last point is a premise of “legal positivism.” Does this trouble you?