The Nature and Value of Law Reading 1

The Nature and Rule of Law  What is law?  A complex social practice which enforces its requirements through coercion.  The central concept of law is: legitimate authority to impose and enforce rules.

What is the function of law?  Regulate and govern behavior using rules  Morality regulates human behavior too  What is the difference?  Morality may forbid performing an act. The reason one should not lie is that it is assumed that lying violates someone’s interests, or lying violates a basic right.

The Nature and Value of Law  In the case of law, one must not cheat on one’s taxes (a form of lying), because it is against the law.  What are sanctions and do they play a role in morality?

 Typically not. If you lie to your wife or husband, there are probably no sanctions. If you get caught, he or she might be angry.  In the case of law, if you break the law and get caught, there is always a threat of a sanction.  A warning, a fine, a conviction.

 John Austin said that the law is a command that is backed by a sanction.  Sanctions make the law powerful and a command that cannot be refused.

Mafiosi  In a mafia family, how many of the elements we talked about up to now are present?  Coercion  Sanction  Command  Obligation to obey

Mafia Boss  Does not think of his commands as moral  Will sanction those who disobey  Uses force and power to back his rules  Absence of fairness, reciprocity

Philosophy of Law  One of the main issues in the philosophy of law is to explain the role of obligation and its origin. Does legal obligation come from morality or not?  The mafia boss imposes rules, because that’s what he wants done. In some cases, you might say we have an obligation to obey the law because it is the law.  In other cases, you might say we must obey because it is morally right.

Natural Law Theory  Laws and the legal system are backed by morality.  It is illegal to kill someone, because it is morally wrong. On Aristotle’s view, killing leads to social chaos but also removes a person’s ability to pursue happiness.

Legal Positivism  One should obey the law because it is the law.  Laws stem from social practices, agreements and traditions. They need not have any moral backing.  The law should be consistent with current morality, but it need not come from that morality.

Integrity  Integrity is a virtue. The community is important and judges should use justice and fairness when interpreting the law.  (Ronald Dworkin)

Fidelity  Another key concept of the nature of law is that we ought to support it. We should pay our taxes, respect our neighbors--obey the laws of the land even if:  We disagree with the political party in office  Some of the laws are unjust  Some judges are unfair

Obligation  We are obligated to obey the laws because we benefit from living under the law: integrity, social harmony, justice.  The goals achieved by the laws are moral says Fuller. They are good.

Legal Positivism  The law is a social construct and has obligatory force because it is the law.  It has no ground in natural principles. Or some notion of natural goodness.  Aristotle and Aquinas believed that if a thing follows its natural purpose, then this is good. It will lead to flourishing. If something goes against its natural purpose then this could produce bad effects. Natural law theory proposes that force of the law rests on these kinds of natural facts.  Legal positivism denies these claims.

 Dworkin thought that the best way to uncover the nature of law is to look at how legal decision-making takes place.  Other philosophers believe it is good to look at how judges adjudicate disputes.

The Nature of Law: Interpretation  One cannot discuss the nature of law without talking about interpreting it.  Laws must be interpreted and how this takes place can be the subject of controversy.  In the example of the Eighth Amendment, there are different ways to determine how to interpret the law.  Intention of the framers  Relationship to other laws and social practices  Semantic meanings of the terms such as “cruel.”

Law and Morality  Normative enterprises: they are rule governed.  Descriptive assertions: characterize the world as it is, was, or will be.  Normative assertions: value judgments. “One ought not”

Descriptive or Normative?  Do not cheat at cards.  Sam usually cheats at cards.  Do not lie.  The President lies everyday.  Do not use people.  Con men and women use people. In each of these cases, the descriptive proposition is second. The Naturalistic Fallacy is an inference which as a descriptive proposition as a premise and a normative statement as the conclusion.

Naturalistic Fallacy People who cheat, lie, and steal hurt others. Therefore, it is wrong to cheat, lie, and steal. This argument commits the Naturalistic Fallacy. There is a missing assumption which asserts that it is wrong to hurt people. Values are not built into descriptive statements.

Summary  Key concepts of law are:  Coercion  Fidelity  Legitimate authority  Morality  Natural law  Legal positivism  Sanctions  Interpretation  Normative/descriptive