WHAT IS LAW?

4 approaches

WHAT IS LAW?

NATURAL LAWPOSITIVISMCOMMON LAWLEGAL REALISM

NATURAL LAW

AristotleCiceroSt Thomas AquinasFrancisco SuarezFinnisDominated Western thought until the 18th

CenturyAssertions about natural law were often

the basis of the argument for individual or human rights and for imposing limitations on government

Groundwork for the principles of international law

NATURAL LAW

Law ultimately owes its validity to God or to a higher moral reason, so anything which contravenes this higher order cannot be said to be law.

Law exists independently of the individual or collective will, and thus is created by neither (contra common law and positivism)

Cicero, De Re Publica “True law is right reason in agreement with nature; it is of

universal application, unchanging and everlasting. It summons to duty by its commands, and averts from wrongdoing by its prohibitions….It is a sin to try to alter this law, nor is it allowable to repeal any part of it, and it is impossible to abolish it entirely.We cannot be freed from its obligations by Senate or people, and we need not look outside ourselves for an expounder or interpreter of it. And there will not be different laws at Rome and at Athens, or different laws now and in the future, but one eternal and unchangeable law will be valid for all nations and all times, and there will be one master and ruler, that is, God, over us all, for he is the author of this law, its promulgator, and its enforcing judge. Whoever is disobedient is fleeing from himself and denying his human nature, and by reason of this very fact he will suffer the worst penalties, even if he escapes what is commonly considered punishment”

Principles of Natural Law

Natural law is unchanging over time and does not differ in different societies

Every person has access to the standards of this higher law by the use of reason;

Only just laws “really deserve the name” law and “in the very definition of the term ‘law’ there inheres the idea and principle of choosing what is just and true”

Natural Law

Natural law theory provides that just as nature follows various physical laws, so there are moral norms which are observable in the natural order.

Based on Aristotle.

Thomas Aquinas: four types of law1. The eternal – God’s plan for the universe2. the natural- that part of the eternal law

which is discoverable by reason and which is to be found in the human mind,

3. the human - the law created by humans on the basis of natural reason, (or positive law) and

4. the divine – that law revealed in scripture.

The problem of “unjust laws”

Lex iniusta non est lex: an unjust law is not a law

A just law :

– is consistent with the requirements of natural law

– Does not exceed the authority of the law maker

– Imposes burdens on citizens fairly.

Finnis’ basic goods

1. life (and health)

2. knowledge

3. play

4. aesthetic experience

5. sociability (friendship)

6. practical reasonableness

7. religion

POSITIVISM

Jeremy BenthamJohn AustinHLA HartVery influential over last 200 years

and in current legal thinking; a critique of common law and natural law thinking

Positivism

Is and ought or is and should are separate questions.

“The existence of law is one thing; its merit or demerit is another. Whether it be or be not is one enquiry; whether it be or be not conformable to an assumed standard, is a different enquiry. A law, which actually exists, is a law, though we happen to dislike it, or though it vary from the text, by which we regulate our approbation and disapprobation.” John Austin

Positivism

Legal systems are created by (posited) by people rather than having some natural or metaphysical existence.

Law as a command: Austin

Features of a command:

– a wish or desire of one rational being directed to another

– this intention is communicated

– if the command is not obeyed a punishment of some sort will result

Command theory

Austin: A law is a general command made by a sovereign

Problem: how could sovereigns – who make commands – be subject to the rule of law.

Rejected by HLA Hart

HLA Hart

Laws exist in two groups:

– primary rules (substantive law – eg road rules)

– Secondary rules (rules about rules – eg constitutions, procedural rules.)

“rule of recognition”.

COMMON LAW

Not necessarily what we think of as common law today, but the foundational ideas of much of common law thought.

Common law theory flowered in 16-18th centuries.

CokeBlackstoneHalePredominantly English

Common LawLaw is not something made either by king,

parliament or judges, but rather is the expression of a deeper reality which is merely discovered and publicly declared by them. (cf Trigwell’s case)

PrecedentWritten record, or reporting of lawJudges declare law, they do not make law Individual judge is unimportant – “oracle” of

the lawLaw as artificial reason which must be learned

Blackstone“judges…are the depositaries of the law; the living oracles, who must decide in all cases of doubt, and who are bound by an oath to decide according to the law of the land. Their knowledge of that law is derived from experience and study;…and from being long personally accustomed to the judicial decisions of their predecessors. And indeed these judicial decisions are the principal and most authoritative evidence….The judgement itself [is] carefully registered and preserved, under the name of records, in public repositories set apart for that particular purpose; and to them frequent recourse is had, when any critical question arises, in the determination of which former precedents may give light or assistance…For it is an established rule to abide by former precedents, where the same points come again in litigation; as well to keep the scale of justice even and steady, and not liable to waver with every new judge’s opinion”

Prohibitions del Roy : Coke“ A controversy of land between parties was heard by the King,

and sentence given, which was repealed, for this, that it did belong to the common law: then the King said, that he thought the law was founded upon reason, and that he and others had reason, as well as the Judges; to which it was answered by me, that true it was, that God had endowed his Majesty with excellent science, and great endowments of nature; but his Majesty was not learned in the laws of his realm of England, and causes which concern the life, or inheritance, or goods, or fortunes of his subjects, are not to be decided by natural law reason, but by the artificial reason and judgement of law, which law is an act which requires long study and experience, before that a man can attain to the cognizance of it; and that the law was the golden met-wand and measure to try the causes of the subjects; and which protected his Majesty in safety and peace: with which the King was greatly offended and said, that then he should be under the law, which was treason to affirm, as he said: to which I said, that Bracton saith, quod Rex non debet esse sub homine, sed sub Deo et lege [that the King is under no man, but under God and the law].

Common Law

Change is possible – through the incremental development of the common law by accumulated decisions, but a law which has stood the test of time is to be preferred to one which has simply been devised in a particular era.

Law organically connected to the people it serves through custom and tradition

LEGAL REALISM

Oliver Wendell Holmes (laid groundwork)“The prophecies of what the courts will do in

fact, and nothing more pretentious, are what I mean by law” (This is the question which the bad man wants answered.)

John Dewey (Dewey decimal system)Karl LlewellynJerome Frank20th Century

Legal RealismThe life of the law does not exist in the application

of pre-existing rules to concrete cases, but rather in the development through experience of legal principles.

The law then, is what the courts do, not what they did two centuries ago (except insofar as it is a guide to what they will do now), or an abstract set of doctrines.

For realists, law is an inherently practical activity, which must be associated with the real world, as it is something which has a practical effect in the concrete world, and is not merely a body of abstract rules and doctrines.