Katarzyna Gromek Broc York University Law School The Nature of Law Katarzyna Gromek Broc York University Law School

Form and Function of the law debate Focus on purpose of law, e.g. Llewellyn’s law jobs: dissolution of the trouble case; preventative channelling and reorientation of conduct; allocation of authority; net drive The function of the law is more important than its shape

Form or function? Is the form (shape) or function (job) of rule governance most important? Limitations of formal conception: Doesn’t answer “why do we need law?” Only applies to developed hierarchical systems Doesn’t account for law-like functions carried out in more primitive societies or in less structured environments.

Form or function? Limitations of functional conception: Doesn’t distinguish strict formal hierarchical systems from non-formal systems; Doesn’t distinguish between the common-sense conception of law as being concerned with state power and other exercises of power where the law jobs are performed.

A moral or non moral conception Legal Positivism: There is no necessary conceptual connection between law and morality Legal validity separate to moral validity Legal Idealism: There is a necessary conceptual connection between law and morality Legal validity requires, in some sense, moral validity

Legal Pluralism Law [emanates] from the state but not only from the state’ - Cownie, Bradney and Burton, (2003), English Legal System in Context, 22.

Positivism and beyond John Austin(1790–1859) Herbert Hart (1907-1992) Ronald Dworkin (1931 - )

John Austin and Command Theory of Law Two key notions: Command Obedience

Key features: General: maintaining the normativity of law consists in a subject ability to predict the chances of incurring punishment Every legal norm must comprise a thread backed up by a sanction Habit of obedience of the political sovereign

Law for Austin consists in general commands issued by sovereigns to their subjects (who have a general habit of compliance), and backed up by threat of force (in the form of sanctions).

Problems with Austin’s account: Some laws do not command anything, but rather: - give instructions on how to successfully achieve certain legal ends; - confer the power to make law.

Two lessons: The Social Thesis: Law is a matter of social facts The Separation Thesis: Law is only a matter of social facts. Law and morality are conceptually distinct Legal Positivism: The existence and content of law depend on social facts, not on its moral qualities.

H.L.A. Hart and the Concept of Law Law is a system of social rules. Internal aspect of social rules; Rules have different functions.

Primary rules Secondary rules: - Rules of recognition - Rules of change - Rules of adjudication Law is the union of primary and secondary rules.

Ronald Dworkin: principles vs rules Difference between rules and principles: legal rules are an all-or-nothing concept principles of justice have “weight” legal rules are created by their enactment principles are to be inferred as the best explanation for existing legal practice

judges need to make a judgement that will: provide the “best fit” with the body of legislative and judicial rules, decisions and unwritten principles of the common law; reveal the law in its “best light” in terms of moral and political soundness.

Natural law At least some laws are authoritative in virtue of their moral content There is some kind of non-conventional relation between law and morality.

Classical Natural Law Theory (Aquinas, Blackstone) Conceptual naturalism: a norm that does not conform to the natural law cannot be legally valid. “[E]very human law has just so much of the nature of law as is derived from the law of nature. But if in any point it deflects from the law of nature, it is no longer a law but a perversion of law” (Aquinas)

“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” (William Blackstone).

Natural Law Two core claims of conceptual naturalism: 1) there can be no legally valid standards that conflict with the natural law; 2) all valid laws derive what force and authority they have from the natural law.

John Finnis’ Neo-Naturalism Basic goods: Life Health Knowledge Play Friendship Religion aesthetic experience.

Natural Law “A ruler’s use of authority is radically defective if he exploits his opportunities by making stipulations intended by him not for the common good but for his own or his friends’ or party’s or faction’s advantage, or out of malice against some person or group” (Finnis 1980, 352). The ultimate justification for the ruler’s moral authority “is the fact that he has the opportunity, and thus the responsibility, of furthering the common good by stipulating solutions to a community’s co- ordination problems” (Finnis 1980, 351).

Lon L. Fuller’s functionalist conception of law Law’s essential function is to “achiev[e] [social] order through subjecting people’s conduct to the guidance of general rules by which they may themselves orient their behavior” (Fuller 1965, 657).

Functionalist conception of law: nothing can count as law unless it is capable of performing law’s essential function of guiding behavior. But to be capable of performing this function, a system of rules must satisfy the following 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.

“What I have called the internal morality of law is … a procedural version of natural law … [in the sense that it is] concerned, not with the substantive aims of legal rules, but with the ways in which a system of rules for governing human conduct must be constructed and administered if it is to be efficacious and at the same time remain what it purports to be” (Fuller 1964, 96- 97).