Understanding Jurisprudence: An Introduction to Legal Theory PDF

UNDER S TANDING JURISPRUDENCE This page intentionally left blank Understanding Jurisprudence An Introduction to Legal Theory Third edition R AYMOND WACKS BA, LLB, LLM, LLD, MLitt, PhD Emeritus Professor of Law and Legal Theory 1 3 Great Clarendon Street, Oxford OX2 6DP Oxford University Press is a department of the University of Oxford. It furthers the University’s objective of excellence in research, scholarship, and education by publishing worldwide in Oxford New York Auckland Cape Town Dar es Salaam Hong Kong Karachi Kuala Lumpur Madrid Melbourne Mexico City Nairobi New Delhi Shanghai Taipei Toronto With offices in Argentina Austria Brazil Chile Czech Republic France Greece Guatemala Hungary Italy Japan Poland Portugal Singapore South Korea Switzerland Thailand Turkey Ukraine Vietnam Oxford is a registered trade mark of Oxford University Press in the UK and in certain other countries Published in the United States by Oxford University Press Inc., New York © Raymond Wacks 2012 The moral rights of the author have been asserted Contains public sector information licensed under the Open Government Licence v1.0 (http://www.nationalarchives.gov.uk/doc/ open-government-licence/open-government-licence.htm) Crown copyright material reproduced with the permission of the Controller, HMSO (under the terms of the Click Use licence) Database right Oxford University Press (maker) First edition 2005 Second edition 2009 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission in writing of Oxford University Press, or as expressly permitted by law, or under terms agreed with the appropriate reprographics rights organization. Enquiries concerning reproduction outside the scope of the above should be sent to the Rights Department, Oxford University Press, at the address above You must not circulate this book in any other binding or cover and you must impose the same condition on any acquirer British Library Cataloguing-in-Publication Data Data available Library of Congress Control Number: 2011942563 Typeset by Newgen Imaging Systems (P) Ltd, Chennai, India Printed in Great Britain on acid-free paper by Ashford Colour Press Ltd, Gosport, Hampshire ISBN 978–0–19–960826–3 ‘Do not weep; do not wax indignant. Understand.’ Baruch Spinoza This page intentionally left blank Contents Preface xv Preface to ﬁrst edition xvii List of Tables and Figures xix Acknowledgements xxi 1 Introduction 1 2 Natural law and morality 10 3 Classical legal positivism 57 4 Modern legal positivism 77 5 Dworkin and the moral integrity of law 118 6 Legal realism 145 7 Law and social theory 162 8 Historical and anthropological jurisprudence 196 9 Theories of justice 212 10 Rights 233 11 Why obey the law? 265 12 Why punish? 271 13 Critical legal theory 281 14 Feminist and critical race theory 299 15 Jurisprudence understood? 317 Glossary 319 Index 323 This page intentionally left blank Detailed Contents Preface xv Preface to ﬁrst edition xvii List of Tables and Figures xix Acknowledgements xxi 1 Introduction 1 1.1 An analgesic? 1 1.2 Reading 3 1.3 Why jurisprudence? 4 1.4 Descriptive, normative, and critical legal theory 5 1.5 Is eating people wrong? 6 1.6 The point of legal theory 8 2 Natural law and morality 10 2.1 Classical natural law theory 11 2.1.1 Plato and Aristotle 11 2.1.2 St Thomas Aquinas 12 2.2 Contemporary natural law theory 16 2.3 Natural law in political philosophy 17 2.3.1 Hobbes 17 2.3.2 Locke 19 2.3.3 Rousseau 20 2.4 The decline of natural law theory 21 2.5 The revival of natural law theory 22 2.6 John Finnis 23 2.7 Hard and soft natural law? 26 2.8 Moral realism 27 2.9 Critique 30 2.10 Law and morality 30 2.10.1 Natural law v positivism 31 2.10.2 Hart v Fuller 33 2.10.3 Hart v Devlin 35 2.11 Judicial morality: a case study 40 2.11.1 Moral questions 40 2.11.2 Semantic questions 41 2.11.3 Public or private morality? 44 2.11.4 The judge’s duty 45 2.11.5 The judge’s choice 46 2.11.6 The judge’s surrender 49 2.11.7 The judge and the lawyer 50 2.12 Questions 51 2.13 Further reading 53 x DE TAILED CONTENTS 3 Classical legal positivism 57 3.1 What is legal positivism? 57 3.1.1 What legal positivism is not 58 3.2 Jeremy Bentham: the Luther of jurisprudence? 60 3.2.1 In search of determinacy 61 3.2.2 Judge & Co 62 3.2.3 Codiﬁcation 63 3.3 John Austin: naive empiricist? 64 3.3.1 Imperatives 64 3.3.2 Laws properly so called 65 3.3.3 Law and power 65 3.4 Bentham and Austin compared 67 3.4.1 Their general approaches 67 3.4.2 The deﬁnition of law 68 3.4.3 Commands 68 3.4.4 Sovereignty 71 3.4.5 Sanctions 73 3.5 Questions 74 3.6 Further reading 75 4 Modern legal positivism 77 4.1 The foundations 77 4.2 HLA Hart 78 4.2.1 Hart as legal positivist 79 4.2.2 Law and language 80 4.2.3 Law as a system of rules 81 4.2.4 Social rules 81 4.2.5 Secondary rules 82 4.2.6 The rule of recognition 83 4.2.7 The existence of a legal system 85 4.2.8 The ‘internal point of view’ 86 4.2.9 The judicial function 87 4.2.10 ‘An essay in descriptive sociology’? 87 4.2.11 Critique 88 4.3 Hans Kelsen 89 4.3.1 Unadulterated law 90 4.3.2 A hierarchy of norms 92 4.3.3 The Grundnorm 92 4.3.4 Validity, efﬁcacy, and revolution 97 4.3.5 International law 99 4.3.6 Kelsen and Kant 102 4.3.7 Democracy and the rule of law 104 4.3.8 Critique 105 4.4 Joseph Raz 106 4.4.1 The ‘sources thesis’ 106 4.4.2 Practical reason 107 4.4.3 Committed and detached statements 108 4.4.4 Critique 108 4.5 Hard and soft positivism 110 DE TAILED CONTENTS xi 4.6 Questions 113 4.7 Further reading 115 5 Dworkin and the moral integrity of law 118 5.1 An overview 119 5.2 The assault on positivism 120 5.2.1 Principles and policies 121 5.2.2 Hercules and hard cases 122 5.2.3 One right answer 124 5.2.4 The semantic sting 124 5.2.5 The rights thesis 127 5.2.6 Law as literature 128 5.2.7 Law as integrity 129 5.2.8 Community 130 5.3 Equality 131 5.4 Good lives and living well 133 5.5 The assault on Dworkin 134 5.6 Questions 142 5.7 Further reading 143 6 Legal realism 145 6.1 What are realists realistic about? 145 6.2 American Realism 146 6.2.1 Oliver Wendell Holmes Jr 149 6.2.2 Karl Llewellyn 149 6.2.3 Jerome Frank 151 6.2.4 The American realist method 152 6.3 The Scandinavian realists 154 6.3.1 Alf Ross 155 6.3.2 Karl Olivecrona 157 6.3.3 Critique 158 6.4 Realism and psychology 158 6.5 Questions 159 6.6 Further reading 160 7 Law and social theory 162 7.1 What is a sociological perspective? 163 7.2 Roscoe Pound 164 7.2.1 Social interests and ‘ jural postulates’ 164 7.2.2 Critique of Pound 165 7.3 Eugen Ehrlich 166 7.4 Émile Durkheim 167 7.4.1 Law and social solidarity 168 7.4.2 The function of punishment 168 7.4.3 Critique of Durkheim 169 7.5 Max Weber 170 7.5.1 Weber’s typology of law 171 7.5.2 Weber’s theory of legitimate domination 173 7.5.3 Capitalism and law 174 7.5.4 Critique of Weber 176 xii DE TAILED CONTENTS 7.6 Karl Marx 177 7.6.1 Historicism 178 7.6.2 Base and superstructure 179 7.6.3 Ideology 180 7.6.4 Goodbye to law? 181 7.6.5 Legal fetishism 181 7.6.6 Conﬂict or consensus? 182 7.7 Michel Foucault 186 7.7.1 Power 187 7.7.2 The law 188 7.7.3 Critique 189 7.8 Jürgen Habermas 189 7.8.1 The modern state 189 7.8.2 The law 190 7.8.3 Critique 190 7.9 Autopoiesis 191 7.10 Whither the sociology of law? 191 7.11 Questions 192 7.12 Further reading 193 8 Historical and anthropological jurisprudence 196 8.1 Why do legal systems differ? 196 8.2 The historical school 198 8.2.1 Savigny 198 8.3 Sir Henry Maine 200 8.3.1 The evolution of law 201 8.3.2 Natural law 201 8.3.3 Fictions 202 8.3.4 Critique 202 8.4 Anthropological jurisprudence 203 8.4.1 ‘Law’ in tribal societies 203 8.4.2 Bronislaw Malinowski 204 8.4.3 E Adamson Hoebel 205 8.4.4 Max Gluckman 205 8.4.5 Paul Bohannan 206 8.4.6 Leopold Pospisil 206 8.4.7 Other theorists 207 8.5 Legal pluralism 207 8.6 Questions 208 8.7 Further reading 209 9 Theories of justice 212 9.1 Utilitarianism 213 9.1.1 Consequences 214 9.1.2 Preferences 215 9.1.3 Critique of utilitarianism 215 9.2 The economic analysis of law 217 9.2.1 Critique 220 DE TAILED CONTENTS xiii 9.3 John Rawls 221 9.3.1 The rejection of utilitarianism 222 9.3.2 Social contractarianism 222 9.3.3 The original position 223 9.3.4 The two principles of justice 223 9.3.5 Reconsideration 225 9.3.6 Critique of Rawls 226 9.4 Robert Nozick 227 9.5 Questions 231 9.6 Further reading 231 10 Rights 233 10.1 What is a right? 233 10.2 Theories of rights 236 10.2.1 Right-based theories 237 10.3 Human rights 239 10.3.1 Communitarianism 241 10.3.2 Relativism 243 10.3.3 Utilitarianism 243 10.3.4 Socialism 244 10.3.5 Legal positivism 244 10.3.6 Critical theory 245 10.4 The future of human rights 245 10.5 Animal rights 246 10.5.1 Ethical subjectivism and intuitionism 246 10.5.2 Utilitarianism 247 10.5.3 Can animals have rights? 248 10.5.4 Social contractarianism 251 10.5.5 Intrinsic worth 252 10.5.6 The rights of animals 252 10.6 Freedom of expression: a case study 254 10.6.1 Individual or community? 255 10.6.2 Speaker or audience? 255 10.6.3 The argument from truth 256 10.6.4 Self-government 257 10.6.5 Press freedom 258 10.6.6 The First Amendment 259 10.6.7 Speech and action 260 10.6.8 Balancing 260 10.7 Questions 261 10.8 Further reading 262 11 Why obey the law? 265 11.1 The terms of the debate 265 11.1.1 A prima facie duty? 266 11.1.2 Justifying the duty 266 11.2 Questions 269 11.3 Further reading 269 xiv DE TAILED CONTENTS 12 Why punish? 271 12.1 Justifying punishment 272 12.2 Retributivism 273 12.2.1 Weak and strong retributivists 274 12.2.2 Critique 275 12.3 Consequentialism 276 12.4 Critique 276 12.5 Restorative justice 277 12.6 Critique 277 12.7 Communication 278 12.8 Critique 278 12.9 Questions 278 12.10 Further reading 279 13 Critical legal theory 281 13.1 Critical Legal Studies 281 13.1.1 Trashing CLS? 285 13.2 Postmodern legal theory 287 13.2.1 What is it? 287 13.2.2 The death of the subject 289 13.2.3 Jacques Lacan 289 13.2.4 Jacques Derrida 290 13.2.5 Foucault and Habermas 291 13.2.6 The postmodern agenda 291 13.2.7 Language 292 13.2.8 Critical theory and individual rights 293 13.2.9 Critique 294 13.3 Questions 295 13.4 Further reading 296 14 Feminist and critical race theory 299 14.1 Feminist legal theories 299 14.2 Origins of feminism 300 14.3 Legal feminisms 302 14.3.1 Liberal feminism 302 14.3.2 Radical feminism 303 14.3.3 Postmodern feminism 305 14.3.4 Difference feminism 306 14.3.5 Other feminisms 308 14.4 Critique 308 14.5 Critical race theory 310 14.5.1 CRT and feminist theory 312 14.5.2 CRT and postmodernism 313 14.6 Questions 314 14.7 Further reading 315 15 Jurisprudence understood? 317 Glossary 319 Index 323 Preface It is hard to believe that a quarter of a century has elapsed since the appearance of the first incarnation of this book. Nevertheless, although it has more than doubled in length, its ambition remains the same: to provide a lucid guide to a discipline that frequently engenders confusion, even anxiety, among students. It struck me then—and little has changed—that First Aid was urgently required. Drawing on my thirty years as a teacher of jurisprudence in three jurisdictions, I believed I could ease some of the pain associated with this important subject. Identifying, in particular, those theories, or elements thereof, that seemed to generate the most acute anguish, I attempted to clarify them—in the most accessible manner possible. And this continues to be the purpose of the pages that follow. Consequently, the amount of space devoted to a specific question is proportionate to what I consider to be its relative difficulty, or the adequacy of its treatment in other texts. This is a crucial point. The book in your hands is not, in the conventional sense of the word, a textbook. Nor is it intended to replace the sources to which I constantly refer, both in the footnotes and in the section on further reading that follows every chapter. My over- riding objective is, as I declared in the first edition, to point students in the right direction, avoiding needless deviation, mystification, and ambiguity. Moreover, the topics selected generally reflect the syllabuses of universities and law schools in the major common law, and some civil law, jurisdictions. I have again been fortunate to have received detailed comments and suggestions from a distinguished squadron of jurisprudence teachers from a number of law schools. Their meticulous reviews have proved extremely valuable in the preparation of this new edi- tion. All of their recommendations have been given careful consideration; most have been adopted, thereby, I feel sure, significantly improving the book. I wish to record my gratitude to them, as well as to Ronald Dworkin, Stephen Guest, and Scott Shapiro. Responsibility for any errors or misunderstanding I may have perpetrated in the text attaches, of course, solely to me. Many readers have generously expressed their appreciation for the helping hand that earlier editions have lent them. I can only hope this salutary state of affairs continues to extend to students—and teachers—who have invested in this new edition. I am greatly indebted also to Abbey Nelms and Kizzy Taylor-Richelieu of Oxford University Press, and to Joy Ruskin-Tompkins and Lynn Aitchison for so adeptly aiding and abetting this enterprise. Raymond Wacks This page intentionally left blank Preface to ﬁrst edition In the course of writing this book, Lily and Willy would often peer through my study win- dow. Though intelligent, these doves exhibited an extraordinary curiosity in the words flickering across my monitor. And in the garden, as I sat proofreading, my plucky hens displayed an equally remarkable interest in the fluttering pages I was correcting. One afternoon, Ruby leapt on to the table and pecked ‘Dworkin’ once and ‘Coleman’ twice. I have no idea what she was trying to tell me. This avian enthusiasm, I am bound to say, far exceeded that evinced by many of my pragmatic law students who may perhaps have been right: jurisprudence is strictly for the birds. I hope not. The concept of law lies at the heart of our social and political life. Jurisprudence illuminates it and its relation to the universal questions of justice, rights, and morality. It analyses the nature and purpose of our legal system, and its practice by courts, lawyers, and judges. Or so I told them. Frequently, however, it is only after they have studied legal theory that even students of the strongest black-letter disposition come to recognize how rewarding it was. Or so they told me. Indeed, it may be the lone oppor- tunity in a crowded curriculum for reflection upon, and critical analysis of, law and the legal system. Given proper guidance and encouragement, even the least compliant, most vocationally oriented student may develop a genuine interest in, and even affection for, jurisprudence. But here lurks a significant difficulty. Much of the literature is an impenetrable thicket to all but the professional jurist, or wholly dedicated and gifted student. It is the chief object of this book, without avoiding the subtleties and complexities of legal theory, to provide such guidance and encouragement. The perplexed and occasionally bewildered faces of my long-suffering students over the years have been in my mind’s eye throughout the writing of the pages that follow. Jurisprudence teachers harbour few illusions about the place of the subject in students’ hearts or in the pecking order of most law school curricula. What was once, in many com- mon law jurisdictions, a compulsory course, has, in our anti-authoritarian age, become a forlorn elective. Nor, incomprehensibly, do many American students reap the rich rewards of a discipline in which so many of their professors excel. This is a crime against philosophy. If the approach adopted in this book can contribute even in small measure towards reversing this pernicious drift, my exertions may be justified. Legal theory is, of course, a demanding discipline. Several dangers lie in wait for anyone injudicious enough to endeavour to condense or elucidate its primary concerns. In embark- ing upon this imprudent course, I have been alert to these perils. But I have been forti- fied by the guidance and encouragement I have received from friends and colleagues who have been charitable enough to suppress their misgivings about my attempts to identify and unravel some of the mysteries I have selected for analysis. This has sustained me during periods when I feared that the task I had undertaken was a hopelessly intractable one. In writing this book I have inevitably drawn on both the earlier incarnation of this work and other published work (listed in the acknowledgements overleaf). In the case of the former, I was fortunate to have received comments, often painstaking, from Roger Cotterrell, Ronald Dworkin, John Finnis, the late Eugene Kamenka, Katherine O’Donovan, Joseph Raz, and the late Alice Tay. In respect of the latter, other debts have— felicitously—been incurred. Friends and colleagues have been humane enough to indulge xviii PREFACE TO FIR S T EDITION my attempts to make sense of the questions I consider in my writings on legal theory and privacy that I have drawn on in this book. They have done so over the years by providing generous encouragement, assistance, or (most sensibly) by signalling my many errors. For these, and other, favours I am most grateful to Mick Belson, Colin Bennett, Peter Birks, Michael Bryan, Tom Campbell, Ann Cavoukian, Albert Chen, John Dugard, David Dyzenhaus, John Eekelaar, David Flaherty, Michael Freeman, Jim Harris, Michael Hayes, Alan Hunt, Ellison Kahn, Michael Kirby, Monnie Lee, Eddie Leung, Neil McCormick, Alistair MacQueen, David McQuoid-Mason, Roda Mushkat, Steve Nathanson, Charles Raab, Megan Richardson, Michael Robertson, Wojciech Sadurski, Heather Saward, Scott Shapiro, Jamie Smith, Nico Steytler, Peter Wesley-Smith, and David Wood. None, need- less to say, should be indicted as a co-defendant for the transgressions I have committed. My publishers prudently enlisted a detachment of distinguished legal scholars from both sides of the Atlantic to review my manuscript. I was, needless to say, quick to adopt many of their valuable suggestions. And, since their identity is unknown to me, I can, with complete insouciance, hold these anonymous individuals jointly and severally liable for what follows. The questions that conclude each chapter serve a threefold purpose. First, they iden- tify the central problems in each of the areas analysed. Secondly, they provide fodder for reflection and discussion in seminars or study groups, and, thirdly, they should, I hope, assist students in revising for the examination or other forms of assessment. Most are borrowed from the course materials, essay questions, and examination papers that my students at the University of Hong Kong were compelled to endure. I am grateful to the Faculty of Law for permission to use them here. This book began life almost twenty years ago as a modest attempt to clarify some of the fundamental concerns of the philosophy of law. Though its ambitions remain modest, it, like many of us, has grown stouter. There are, nevertheless, vestiges of the book’s earlier Blackstonian manifestation in these pages. But a great deal is new, for academic ingenuity endlessly slouches toward jurisprudence to be re-born. I am grateful to those at Oxford University Press who helpfully steered this project from my mind, via my screen, to these pages. Especial thanks to Angela Griffin, Sarah Hyland, Melanie Jackson, Catherine Kernot, Sarah Nattrass, Nicola Rainbow, and Penelope Woolf (who twisted my arm to undertake this project). This book could not have been written without the love, patience, and support of my wife, Penelope Wacks (who twisted my arm not to undertake this project). My gratitude to her for all she has given me cannot be expressed adequately in words. This is unashamedly a book for students. It is not, however, a textbook. I have selected its subject-matter on the simple ground that it reflects what tends to be taught in most jurisprudence courses in the common law world. Inevitably, a number of subjects have had to be omitted; it is therefore neither comprehensive nor exhaustive. Nor is it intended to replace the books and essays to which reference is made throughout, and to which all serious students will want to turn. My principal objective is to point students of jurisprudence in the right direction, soaring above needless deviation, mystification, and impediment—not unlike my discerning doves. Raymond Wacks October 2004 List of Tables 2.1 Aquinas’s four categories of law 14 4.1 The rule of recognition and Grundnorm compared 96 7.1 Pound and Ehrlich compared 167 7.2 Weber’s internal typology of law 171 7.3 Weber’s typology of legal development 172 7.4 Weber’s analysis of law and legitimacy 174 7.5 Bourgeois and socialist rights compared 185 7.6 Habermas: modern forms of sovereignty 189 9.1 Rawls’s gain and loss table 223 10.1 Hohfeld’s scheme of ‘jural relations’ 234 14.1 Male/female dualisms 304 14.2 Black and white images 313 List of Figures 3.1 Austin’s province of jurisprudence 66 This page intentionally left blank Acknowledgements I am grateful for the kind permission of the publishers listed below to draw on the follow- ing material: Oxford University Press Raymond Wacks, Privacy and Press Freedom (London: Blackstone Press, 1993) pp 21–34. Richard Nobles and David Schiff, ‘Debating with Natural Law: The Emergence of Legal Positivism’ in James Penner, David Schiff, and Richard Nobles (eds), Introduction to Jurisprudence and Legal Theory: Commentary and Materials (Oxford: Oxford University Press, 2002). Figure 3.1 on page 80 is adapted from the diagram on page 106. Hong Kong University Press Raymond Wacks, ‘Are Judges Morally Accountable?’ in Raymond Wacks, Law, Morality, and the Private Domain (Hong Kong: Hong Kong University Press, 2000) pp 91–111. Raymond Wacks, ‘Do Animals Have Moral Rights?’ in Raymond Wacks, Law, Morality, and the Private Domain (Hong Kong: Hong Kong University Press, 2000), pp 153–7. Raymond Wacks, ‘Can “Human Rights” Survive?’ in Raymond Wacks, Law, Morality, and the Private Domain (Hong Kong: Hong Kong University Press, 2000), pp 179–209. Raymond Wacks, ‘Sacrificed for Science: Are Animal Experiments Morally Defensible’ in Gerhold K Becker (ed), in association with James P Buchanan, Changing Nature’s Course: The Ethical Challenge of Biotechnology (Hong Kong: Hong Kong University Press, 1996), pp 37–57. Raymond Wacks, ‘One Country, Two Grundnormen? The Basic Law and the Basic Norm’ in Raymond Wacks (ed), Hong Kong, China and 1997: Essays in Legal Theory (Hong Kong: Hong Kong University Press, 1996), pp 151–83. Sweet & Maxwell Asia and Hong Kong Law Journal Raymond Wacks, Review of Michael Moore, Objectivity in Ethics and Law (Aldershot: Dartmouth, and Burlington, VT: Ashgate, 2004) in (2004) 34 Hong Kong Law Journal 429–32. Raymond Wacks, ‘The End of Human Rights?’(1994) 24 Hong Kong Law Journal 372. Editions Rodopi BV Raymond Wacks, ‘Judges and Moral Responsibility’ in W Sadurski (ed), Ethical Dimensions of Legal Theory, Poznan Studies in the Philosophy of the Sciences and Humanities (Amsterdam: Rodopi, 1991), pp 111–29. Franz Steiner Verlag Raymond Wacks, ‘Law’s Umpire: Judges, Truth, and Moral Accountability’ in Peter Koller and André-Jean Arnaud (eds), Law, Justice, and Culture (Stuttgart: Franz Steiner Verlag, 1998), pp 75–83. Palgrave Macmillan Alan Hunt, The Sociological Movement in Law (London: Macmillan, 1978). Tables 7.3 and 7.4 on pages 206 and 208 are adapted from diagrams on pages 107 and 119 respectively. This page intentionally left blank 1 Introduction What is law? What is its purpose? Does it consist merely of rules? Can anything be law? What has law to do with justice? Or morality? Democracy? What makes a law valid? Do we have a duty to obey the law? These, and many other, ‘theoretical’ questions suff use the fabric of jurisprudence and legal theory.1 Nor are they restricted to the philosophical reflections of contemplative jurists. Every substantive or ‘black letter’ branch of the law generates queries about its own meaning and purpose. Can the law of contract be properly understood without an appreciation of the concepts of rights and duties? How is the law of tort to be explained in the absence of economic theories of compensation? Is property law not founded on certain conceptions of private property that are steeped in theory? Can criminal law dispense with philosophies of punishment? And so on. Your responses to all these questions will, I hope, be deafening and unequivocal. Jurisprudence is consequently ubiquitous. Its concerns are an inescapable feature of the law and legal system. But it is more. As will soon be evident, it is both informed by, and has signifi- cant implications for, economic, political, and social theory. Drawing the boundaries of this vast terrain is therefore a challenging exercise. Most university courses conceive the purpose of jurisprudence to include an examination of leading legal theories and selected legal con- cepts and an attempt to place them in the context of the legal system. This entails developing the intellectual skills essential to an evaluation of the acceptability or otherwise of ideas of law, justice, and the legal system. It requires an analysis of general theoretical questions about the nature of laws and legal systems in modern societies and the relationship of law with justice and morality. Many courses seek also to examine the function of law in society with particular reference to the relations of law and power, and the concepts and techniques characteristically used in the operation of developed legal systems. And some endeavour to apply philosophical and sociological theories and methodologies to problems of and problems about the law. 1.1 An analgesic? Jurisprudence is, for many students, pain. Given the choice, they would not choose to take the subject at all. And it is little consolation for them to be told that one day they will look back and recognize the value of their exposure to legal theory. Unlike most 1 Th roughout this book, I use the words ‘jurisprudence’, ‘legal theory’, and ‘legal philosophy’ inter- changeably, though, strictly speaking, ‘jurisprudence’ concerns the theoretical analysis of law at the high- est level of abstraction (eg, questions about the nature of a right or a duty, judicial reasoning, etc) and are frequently implied within substantive legal disciplines. ‘Legal theory’ is often used to denote theoretical enquiries about law ‘as such’ that extend beyond the boundaries of law as understood by professional lawyers (eg, the economic analysis of law, Marxist approaches to legal domination, etc). ‘Legal philosophy’ or the ‘philosophy of law’, as its name implies, normally proceeds from the standpoint of the discipline of philoso- phy (eg, it attempts to unravel the sort of problems that might vex moral or political philosophers, such as the concepts of freedom or authority). For a preliminary account of the nature of law, its past, present, and future, see Raymond Wacks, Law: A Very Short Introduction (Oxford: Oxford University Press, 2008). 2 UNDER S TANDING JURISPRUDENCE ‘black letter’ law courses, this one requires you to think, to read a copious assortment of often turgid—and even impenetrable—writing which appears to have little connec- tion with ‘the law’, and frequently presumes an understanding of philosophy, sociology, economics, and even anthropology. There is little security here; you long for the friendly reassurance of a statute, or the simple pleasures of the judgment of a court. Suddenly you are plunged into the perilous depths of grand theory, a world inhabited by epistemology, teleology, and metaphysics. And your apprehension is compounded by the fact that some of your peers actually give the impression of understanding it! A great deal of the literature is highly technical, some of it simply unreadable; its intended audience is a professional one: other jurists rather than the harassed student. Indeed, one distinguished philosopher himself laments the depressing tendency of these analytical debates to be flat and repetitive... revolving in smaller and smaller circles among a diminish- ing band of acolytes. Worse still, they are in danger of becoming uninterestingly paro- chial from a philosophical point of view, as we distance ourselves from the intellectual resources that would enable us to grasp conceptions of law and controversies about law other than our own conceptions and our own controversies, and law itself as something with a history that transcends our particular problems and anxieties.2 In these pages I attempt to avoid these indefensible lapses into obscurity. (And a glossary of the philosophical terms you are most likely to encounter in your jurisprudential jour- ney is provided on p. 319. The abbreviated definitions are intended both to ring a bell and to assist you to comprehend them when they appear before their more detailed discussion in the appropriate chapters.) This book is not, however, intended to be a substitute for your reading of the materials prescribed for your course. Unfortunately no single text could achieve that Utopian ideal. Nor should it. Jurisprudence is a rich and diverse subject which is in a constant state of growth; most textbooks (and, indeed, courses) cannot aspire to a great deal more than an eclectic skimming of its vast depths. And the book in your hands is not a textbook. Nevertheless, while its purpose is modest, I trust that what follows contains enough detail to be a reliable, helpful, and congenial guide to the major themes of this field of study. Limitations of space called for hard choices. This required concision, excision, and even omission. The editorial axe had to fall somewhere; its blade was stayed where the material in question struck me as essential or intractable, or both, and therefore clamouring for more space and, I hope, illumination. Secondly, and almost as obvious, no two courses in jurisprudence are the same. There are a number of theorists and theories that are common to most university syllabuses— the core of this book—but beyond that, every teacher has his or her own preferences, con- ditioned by a wide range of factors, and you will inevitably be required to consult several books, essays, and articles which pertain to these topics. This book is intended to develop your skills in getting to the heart of the matter and, though it deals only with the major strands of legal theory, it aims to equip you to apply similar techniques in respect of the more exotic issues covered in your particular course. Thirdly, the affliction most commonly associated with the study of jurisprudence is lack of confidence. Overwhelmed by the enormity of the subject and its attendant reading materials, many students experience a combination of frustration and despair. Having ploughed through the often rarefied works of leading legal philosophers, they throw up 2 Jeremy Waldron, ‘Legal and Political Philosophy’ in Jules Coleman and Scott Shapiro (eds), The Oxford Handbook of Jurisprudence and Philosophy of Law (Oxford: Oxford University Press, 2002), 352, 381. INTRODUC TION 3 their hands in exasperation at their complexity, density, or their sheer incomprehensibility. It is hoped that the chapters which follow may, while avoiding oversimplification, facilitate a better understanding of the ideas so as to increase your confidence both in reading and writing about them. Fourthly, this book will help you to think more clearly about jurisprudence. It should encourage you to approach the literature with greater insight and understanding. To this extent, a great deal of your pain may be relieved, and the pages that follow may even assist you to enjoy this absorbing and important subject. 1.2 Reading Jurisprudence has a prodigious literature. Most teachers, especially in the United States, eschew textbooks, and prepare their own, often comprehensive, materials tailored to their courses. There are, nevertheless, some useful works recommended by instructors in American law schools. Among them are George C Christie and Patrick H Martin (eds), Jurisprudence: Texts and Readings on the Philosophy of Law,3 and Hayman, Levitt, and Delgado’s Jurisprudence, Classical and Contemporary: From Natural Law to Postmodernism.4 Undergraduate classes in the philosophy of law often use Joel Feinberg and Jules Coleman (eds), Philosophy of Law.5 Elsewhere in the common law world, the prescription of textbooks that include extracts and commentaries is more common. Among the most widely used are MDA Freeman (ed), Lloyd’s Introduction to Jurisprudence,6 and James Penner, David Schiff, and Richard Nobles (eds), Introduction to Jurisprudence and Legal Theory: Commentary and Materials.7 Yet another helpful collection is Jurisprudence: Texts and Commentary by Davies and Holdcroft.8 Many students like JW Harris’s Legal Philosophies,9 McCoubrey and White’s Textbook on Jurisprudence,10 and NE Simmonds’ Central Issues in Jurisprudence: Justice, Law and Rights.11 Also popular is Brian Bix’s Jurisprudence: Theory and Context.12 All are excellent texts. For a thematic approach to the subject, look at Denise Meyerson’s helpful Jurisprudence.13 Another intelligent, lucid introduction to the subject from an explicitly philosophical perspective is Mark Tebbit, Philosophy of Law: An Introduction.14 A handy series of readers on a wide range of theoretical subjects has been published by Dartmouth. Called the International Library of Essays in Law and Legal Theory, it is divided into three sections: schools, areas, and legal cultures. Each volume contains about twenty essays. The books are fairly expensive, but it is likely that your library will have copies. New titles are constantly being added to the large number already published. There are, of course, a number of more specialist works (to which reference is made in the chapters that follow), and if you are a keen student—or simply an affluent one—it would be very useful to own copies of them. Full details of books are given in the ‘Further read- ing’ sections at the end of each chapter. You will certainly be expected to read parts or all of them. Much depends, of course, on what your course attempts to cover. No course in legal theory is, in my experience, ever large enough. There is never enough time to devote to this vast and ever-expanding subject. 3 4 3rd edn (St Paul, Minn: West Publishing, 2008). 2nd edn (St Paul, Minn: West Publishing, 2002). 5 7th edn (Belmont, Calif: Wadsworth/Thomson Learning, 2003). 6 7 8th edn (London: Sweet & Maxwell, 2008). (London: Butterworths, 2002). 8 9 (London: Butterworths, 1991). 2nd edn (London: Butterworths, 1997). 10 11 4th edn (Oxford: Oxford University Press, 2009). 3nd edn (London: Sweet & Maxwell, 2008). 12 13 3rd edn (London: Sweet & Maxwell, 2003). (Melbourne: Oxford University Press, 2011). 14 2nd edn (London: Routledge, 2005). 4 UNDER S TANDING JURISPRUDENCE Articles in journals and essays in collections are, of course, every bit as important as books. Apart from the leading law reviews and journals, there are a number of specialist journals to which you may be referred. These include the American Journal of Jurisprudence, Legal Theory, the Juridical Review, Philosophy and Public Affairs, the Philosophical Quarterly, the Journal of Law and Society, the Law and Society Review, Political Studies, Ratio Juris, and the Proceedings of the Aristotelian Society. The Oxford Journal of Legal Studies devotes a fair number of its pages to essays legally philosophical and jurisprudential. There is also, need- less to say, an abundance of material available at the click of a mouse on the Web. 1.3 Why jurisprudence? As already mentioned, jurisprudence has generous frontiers. It accommodates copious subjects of intellectual enquiry. And the magnitude of this expanding discipline explains, in part, my disclaimer above. These pages attempt to identify and elucidate several of the major preoccupations of legal theory. And I cannot repeat too often that they are not a substitute for the reading of the primary sources themselves. My overriding purpose is, by distilling the essential questions of legal theory, to encourage you to read and reflect upon their original exposition and the controversy they have engendered. No society can properly be understood or explained without a coherent conception of its law and legal doctrine. The social, moral, and cultural foundations of the law, and the theories which both inform and account for them, are no less important than the law’s ‘black letter’: Legal and political theories are not descriptions of brute facts. Nor are they merely postu- lated ideals or aspirations. Theories reflect and are reflected in our social relationships. And the historical development of our social life is itself a part of the intellectual evolution of our ideas... And, if understanding a moral or political concept is a matter of understanding the ‘form of life’ to which it belongs, an articulation of this or that conception may well require attention to its history. Moral and political values thus cannot and should not be discussed in isolation from the institutions and social histories that shaped them.15 The import and validity of this claim will become evident, I hope, as you read the pages that follow. Among the many topics within legal theory’s substantial precincts is that of the defini- tion of law, as well as legal concepts. It stands to reason that before we can begin to explore the nature of law, we need to clarify what it is we mean by this elusive concept. We can barely begin our analysis of the law and legal system without some shared understanding of what it is we are talking about. Or can we? Richard Posner, a leading theorist and judge (whose economic theories are described in 9.2) pours scorn on this simple goal: If someone said to you ‘time is an incredibly important and fundamental feature of the universe and human life, and therefore it is very important that we define it’ you would be nonplussed... I react the same way to efforts to define ‘law’.16 Yet jurisprudence—and the law itself—is haunted by questions of definition. This problem is, however, easier to state than resolve. Nevertheless, there is a relatively painless means by which you can begin to clarify your thoughts on this important question: read Professor 15 NE Simmonds, The Decline of Juridical Reason (Manchester: Manchester University Press, 1984), 13. 16 Richard Posner, Law and Legal Theory in the UK and the USA (Oxford: Clarendon Press, 1996), 1. INTRODUC TION 5 Hart’s ‘Definition and Theory in Jurisprudence’.17 The fact that Hart devoted his inaugural lecture (after being elected to the Chair of Jurisprudence at Oxford in 1953) to this question gives you some indication of the importance he attached to the matter. In this essay, Hart warns against the danger of ‘theory on the back of definition’. By this he means that we should not confuse the act of attempting to define a legal concept with an account of what one might call its ideological function; to do so conflates logical and political criteria. Broadly speaking, there are three main approaches to the problem of definition in gen- eral. The first argues that ‘to mean is to denote’.18 In other words, all significant expres- sions are proper names—what they are the names of are what the expressions signify. But this raises immediate difficulties when it comes to, for instance, fictitious or non-existent things (Mickey Mouse or a unicorn). Surely, it cannot be correct (as Ryle puts it) ‘that to every significant grammatical subject there must correspond an appropriate denotatum in the way in which Fido (the dog) answers to the name “Fido”’. A second approach therefore has emerged that rejects this ‘denotationist’ view; it is asso- ciated with the Cambridge philosopher, Ludwig Wittgenstein, who said: ‘Don’t ask for the meaning, ask for the use.’ The use of an expression is the function it is employed to do, as opposed to any thing or person or event which it is supposed to denote. Thus, to use one of Wittgenstein’s own examples, a ‘knight’ has meaning only once we know the rules of chess; unless we know these rules, it is merely a piece of wood in the shape of a horse. The chief attraction of this approach is that it enables us to fix a meaning to certain legal concepts without the need to employ fictions to correspond with the meaning of certain concepts.19 A third position, known as ‘essentialism’ argues that particular things have essences which serve to identify them as the particular things they are. Thus Austin and Kelsen sought to define law by reference to its fundamental nature (as commands of the sover- eign or a normative system respectively). You will, of course, realize that in seeking ‘definitions’ of law or legal concepts, several difficulties lie in wait. Our political or ideological preferences will inevitably intrude, as will historical, social, and moral considerations. Provided we are alive to these issues, we should not shy away from elucidating the ideas that infuse the legal system. Indeed, unless we do so, conceptual confusion may actually inhibit our attempt to improve the law. 1.4 Descriptive, normative, and critical legal theory Descriptive legal theory seeks to explain what the law is, and why, and its consequences. Normative legal theories, on the other hand, are concerned with what the law ought to be. Put differently, descriptive legal theories are about facts; normative legal theories are about values. Critical legal theory (the subject of Chapter 13) questions the very founda- tion of jurisprudence. Descriptive legal theory may, first, be ‘doctrinal’. It provides a theory to explain a par- ticular legal doctrine. For example, freedom of expression might be justified by decisions of the courts on the limits of free speech. Doctrinal legal theory seeks to answer questions such as ‘Can these cases be elucidated by some underlying theory?’ Secondly, descriptive legal theory may be ‘explanatory’; it attempts to explain why the law is as it is. Marxist legal theory, for example, is ‘explanatory’ in this sense, for it offers an account of law as expressing the interests of the ruling class. A third form of descriptive legal theory 17 (1954) 70 Law Quarterly Review 37, reprinted in his Essays in Jurisprudence and Philosophy. 18 G Ryle, ‘The Theory of Meaning’ in CA Mace (ed), British Philosophy in Mid-Century (London: George Allen & Unwin, 1957). 19 See Hart’s discussion of a ‘corporation’ in the above-mentioned essay. 6 UNDER S TANDING JURISPRUDENCE concerns the consequences that are likely to follow from a certain set of legal rules. For example, economic analysts of law (see 9.2) might use their tools of analysis to assess the probable behavioural effects of a strict liability regime on manufacturers. Normative legal theory, on the other hand, is concerned with values. Such a theory may, for instance, seek to establish whether strict liability ought to be adopted in order to protect consumers. Normative legal theories tend inevitably to be associated with moral or political theories. In pursuing an evaluation of the law, normative legal theories might be either ‘ideal ’ or ‘non-ideal ’. The former relate to what legal rules would create the best legal system if it were politically achievable. The latter presuppose an assortment of con- straints on the choice of legal rules, such as the difficulty in enforcing such rules. But there is no clear-cut distinction between these two categories of legal theory. A normative theory may rely on a descriptive theory to obtain its purchase. Thus, it is hard to sustain the normative theory of utilitarianism (see 9.1) without a descriptive account of the consequences of the application of a specific rule. How would a utilitarian know whether rule X causes the greatest happiness (result Y) without a description of these consequences? Similarly, a descriptive legal theory may, on the basis of predictions about the likelihood of success of, say, law reform, put a brake on the normative legal theory that gave birth to the improvement. You will also perceive (especially in Chapter 5) how normative and descriptive theory may be grafted together to yield a sort of hybrid legal theory. In Dworkin’s theory of ‘law as integrity’, for example, there is an amalgamation of the goals of descriptive doctri- nal theory and normative theory. By claiming that a theory of law should both ‘fit’ and ‘justify’ the legal materials, his theory appears to allow descriptive doctrinal theory to coalesce with normative theory. Critical legal theory has deep misgivings about the concept of a universal founda- tion of law based on reason. Jurisprudence, it argues, endows the law and legal system with a spurious legitimacy. The very notion of law as a unique and distinct discipline is doubted, for it overlooks the fact that, far from being autonomous, the law is inseparable from politics. Indeed, the law, in the minds of critical legal theorists, is anything but a determinate, coherent body of rules and doctrine; it is uncertain and indefi nite. Nor is the law inevitably rational, neutral, or objective: it is expressive of political and economic power. 1.5 Is eating people wrong? A popular launching pad for the comprehension of legal ideas is Lon Fuller’s entertain- ing hypothetical ‘Case of the Speluncean Explorers’.20 It contains five judgments of the Supreme Court of Newgarth in the year 4300. Four members of the Speluncean Society were trapped in an underground cave. Huge efforts were made to rescue them, at a major financial and human cost (ten lives had been lost). On the twentieth day of their ordeal the ill-fated explorers decided that they could avoid death by starvation before they could be rescued only if they killed and ate one of their number. It was proposed by Roger Whetmore, one of the explorers, that they should cast dice to determine who should be eaten. After considerable vacillation, this was accepted, whereupon Whetmore declared 20 Lon L Fuller, ‘The Case of the Speluncean Explorers’ (1949) 62 Harvard Law Review 616. The facts are based on the two leading common law decisions on cannibalism and the defence of necessity in criminal law: R v Dudley & Stephens 14 QBD 273, affi rmed 14 QBD 560, and US v Holmes 26 Fed Cas 360 (1842). INTRODUC TION 7 that he withdrew from the agreement. The others nevertheless decided to proceed, and one of them cast the dice on Whetmore’s behalf. The throw went against him, and he was duly killed and eaten. The survivors were eventually rescued, and charged with murder. Each of the five judges adopts a different approach and conclusion to the case. And, not unlike judges in the real world, each emerges as a distinct personality. The Chief Justice, Truepenny, is a self-important formalist. Keen J is an unyielding positivist. Tatting J is indecisive and rather tortured. Handy J is an arch-realist. Foster J adopts a purposive vision of law, a thinly disguised version of Fuller’s own position.21 The import of each of these positions will become clearer when you have studied the various theories embodied in each of these judicial positions. It would therefore not be a bad idea to return to the Spelunceans when you have completed your study of natural law, positivism, and realism in the following chapters of this book. The central issue confronted in the case is the extent to which confl icting legally protected values (human lives) can be reconciled. Th is dilemma provides a vehicle for Fuller’s deeper belief concerning the very nature of legal theory, for, as he points out, ‘the case was constructed for the sole purpose of bringing into common focus certain divergent philosophies of law and government... [which] presented men with live ques- tions of choice in the days of Plato and Aristotle and which are among the permanent problems of the human race.’22 Hence, as Professor Twining shows, the case reveals the Fullerian perspective of jurisprudential enquiry. He boils it down to the following sorts of questions:23 1. Is it ever morally (a) justifiable (b) excusable to kill and eat a human being? 2. Whether or not it is morally justifiable or excusable, is it legally justifiable to kill and eat a human being in order to save one’s life? Alternatively, is necessity a defence to the charge of murder? 3. What is the connection, if any, between 1 and 2? 4. What is the proper role of an appellate judge in deciding a difficult case on a ques- tion of law? How does this differ from the role of other officials? 5. What kind of reasons are admissible, valid, and cogent in (a) reaching (b) justifying a judicial decision in a hard case? What is the relationship between (a) and (b)? In particular, should public opinion be taken into account in reaching and justifying such decisions? Do (a) citizens (b) judges owe an indefeasible duty of fidelity to the law? Three of the judges in the case accept that Whetmore’s killing was, to some extent, defen- sible. Keen J appears to regard it as entirely justifiable. The somewhat gauche Tatting J is 21 ‘It may startle my hearers for me to say so, but in many ways I feel myself closer to Foster than to anyone else on this court. If he could only rip off that metaphysical jacket he has put on himself, and gain a little more freedom of action, I think we might get along very well indeed.’ Ibid. 22 Ibid, 645. 23 William Twining, Law in Context: Enlarging a Discipline (Oxford: Clarendon Press, 1997), 217. I have slightly amended his formulation. 8 UNDER S TANDING JURISPRUDENCE uncertain of the morality of the defendants’ actions. Truepenny CJ and Keen J conclude that the defendants were, despite the circumstances, guilty of murder. Handy and Foster JJ would overturn the conviction. Tatting J finds the case too difficult, and withdraws. As a result, the court is split and the conviction of the defendants is upheld. Truepenny CJ and Keen J justify their decisions by focusing on what they conceive to be the clear language of the legislature. Tatting J prefers to rely on precedent and analogy. Foster J naturally appeals to the purpose of the law, which he regards as at variance with the statute. Handy rests his decision on ‘common sense’ supported by articulated public opinion. The most significant and instructive contrast is, I think, between the standpoints of Handy and Foster JJ. The former is a realist who conceives of the law as a matter of practical politics. He enjoys belittling Foster J’s efforts to defend a middle ground between politics and formalism.24 The contest between Handy and Foster exposes the nerve of Fuller’s own equivocation about realism (see Chapter 6). It reveals his conviction that law cannot be considered as either ‘is’ or ‘ought’: normative or descriptive. Hence Handy J holds that ‘government is a human affair’ and bemoans the propensity to analyse a situation ‘until all the life and juice have gone out of it and we have left a handful of dust’. He urges an awareness of sub- stance, popular will, and practical politics. Nevertheless, he acknowledges that substance is inadequate; there is frequently a need for form. You will almost certainly be expected to read the ‘Speluncean Explorers’ in full. It provides, for many teachers of legal theory, an entertaining and valuable means of introducing their students to a number of the fundamental concerns of the subject, including the relationship between law and morality; legal positivism and natural law; the nature of the judicial function; the interpretation of statutes; the relation- ship between adjudication and legislation; the connection between law, democracy, and public opinion; whether law has a purpose; the concepts of justice and injustice; the process of legal reasoning, and many more. The case has retained its piquancy and relevance for more than half a century, and will, I believe, continue to do so for many more generations of students. 1.6 The point of legal theory All things considered, the world is not a happy place. The cycle of injustice, war, hunger, exploitation, corruption, racism, sexism, disease, and poverty seems an inevitable feature of our planet, 40 per cent of whose population—three billion people—live in poverty, earning less than US$2 per day.25 The gap between the rich north and the poor south continues to grow. The average Gross Domestic Product per capita in the north is almost twenty times that of the south. A quarter of the world’s population enjoys the fruits of wealth and consumerism as it expends 80 per cent of the planet’s resources. In devel- oping countries one person in five goes hungry every day. Two out of every three lack safe drinking water. Illiteracy and unemployment are rife. A quarter of adult men and half the women of the south are illiterate. One child in six is born underweight. Every 24 ‘Formalism’ emphasizes law’s formal properties rather than its content. For further insights into this approach, see Frederick Schauer, ‘Formalism’ (1998) 97 Yale Law Journal 509. There is also a useful sympo- sium, ‘Formalism Revisited’ in (1999) 66 University of Chicago Law Review 934. 25 Human Development Report, United Nations Development Programme, 27 November 2007, p 25. According to the United Nations Development Programme, ‘There are still around 1 billion people living at the margins of survival on less than US$1 a day, with 2.6 billion—40 percent of the world’s population— living on less than US$2 a day.’ Ibid. INTRODUC TION 9 year one child in ten dies from waterborne diseases or malnutrition.26 Women constitute 70 per cent of the world’s poor and, in much of the south, they work harder but earn less than men; they are more likely to be undernourished as a consequence of discrimination in the allocation of food. Nor are there many signs that this situation is improving. Famine, environmental deg- radation, disease (including the devastation wrought by AIDS), deforestation, natural disasters, and war are almost endemic to the Third World. In the face of this agonizing misery and suffering, the futility of academic discourse often appears overwhelming, or worse. Noam Chomsky may be right: By entering the arena of argument and counter-argument, of technical feasibility and tactics, of footnotes and citation, by accepting the legitimacy of debate on certain issues, one has already lost one’s humanity.27 We must hope that he is wrong, and that moral sensibility and rational argument can indeed co-exist. In the face of evil, it is all too easy to descend into tenuous simplification and rhetoric when reflecting upon the proper nature and function of the law. Analytical clarity is especially urgent in times of turmoil when the voice of the demagogue is loudest. Scrupulous jurisprudential consideration of the most fundamental questions of law, justice, and the meaning of legal concepts is essential. Legal theory has a crucial role to play in defining, shaping, and safeguarding the values that underpin our society. The stakes are not low. 26 UNICEF claims that some 30,000 children die daily as a result of poverty. About 28 per cent of all children in developing countries are underweight or stunted. Infectious diseases continue to afflict the lives of the poor. An estimated 40 million people are living with HIV/AIDS. Annually between 350 and 500 million individuals contract malaria, with 1 million dying from the disease. Africa accounts for 90 per cent of malarial deaths and African children account for over 80 per cent of malaria victims internationally. See http://www.globalissues.org/TradeRelated/Facts.asp. 2 Natural law and morality Are gay marriages immoral? Why is racism wrong? Should the law permit abortion? Are we exercising proper stewardship of the environment? Moral questions routinely tug at the sleeve of our legal and political practices. Their persistence is perhaps one of the hall- marks of a democratic, or at least an open, society. Nor are such enquiries confined to the armchair of philosophy: the vocabulary of ethics increasingly infuses the language of international relations. To postulate an ‘axis of evil’ presupposes a normative touch- stone by which to judge the behaviour of states that, since the establishment of the United Nations, is partly embodied in an ever-growing cluster of international declarations and conventions. The ubiquity of ethical problems, from the quotidian (‘Should I tell him the truth?’) to the momentous (a declaration of war on ostensibly moral grounds) has, of course, preoccupied moral philosophers since Aristotle. Indeed, the recent renaissance in natural law theory may represent an acknowledgement that we have, over the centuries, come no closer to resolving these awkward questions. There are, broadly speaking, two opposing positions. The first is known as ‘moral realism’, and proposes that certain moral virtues exist independently of our minds or of convention. Natural lawyers and those of a Kantian persuasion generally march under this banner—an approach that will be examined in this chapter.1 Secondly, there is the sceptical path, most closely associated with utilitarians, such as Bentham, and legal posi- tivists like Kelsen, who deny the existence of any deontological, mind-independent moral values. This position is discussed in 3.2 and 4.3. The place and function of morals in the law has always been a focal concern of legal and political philosophers, and it is no exaggeration to say that it has become one of the most significant questions, indeed the fundamental question, that animates the debates of today’s jurisprudence. The full extent of the disagreements between legal positivists who seek to maintain a sort of conceptual apartheid between law and morals, on the one hand, and those, including natural lawyers, who reject the idea of a law/morals separation, will become a great deal more comprehensible in Chapter 4. At this stage, it suffices to alert you to this crucial dispute that has come to dominate—not always beneficially—contemporary legal theory. While reading what follows, bear in mind that, along with natural law (which I sketch first below), the views of theorists who regard law as an essentially moral concept, have, in 1 Ronald Dworkin nicely expresses what he calls ‘Kant’s principle’ as follows: ‘[I]f the value you fi nd in your life is to be truly objective, it must be the value of humanity itself. You must find the same objective value in the lives of all other persons. You must treat yourself as an end in yourself, and therefore, out of self-respect, you must treat all other people as ends in themselves as well’. Ronald Dworkin, Justice for Hedgehogs (Cambridge, Mass and London: The Belknap Press of Harvard University Press, 2011), 265. Dworkin’s claim that ‘[l]aw is effectively integrated with morality’ ibid, 414, could just as comfortably be considered in this chapter, but the significance and sweep of his argument, and the extent to which it constitutes an elaborate theory of law and morality, requires that it be considered in its own right in Chapter 5. But bear in mind that, though Dworkin is not, strictly speaking, a natural lawyer, his moral thesis often resembles a secular version thereof. NATUR AL L AW AND MOR ALIT Y 11 recent years, shrunk to a minority. You may want to ponder why this is the case, and why legal positivism, once denigrated,2 has become something of a growth industry.3 The contrasting approaches of two Cambridge colleagues provide a nice exemplar of the gulf between contemporary jurists. Nigel Simmonds mounts a careful, compelling case in support of the view that ‘“law” is an intrinsically moral idea, and that inquiry into the nature of law is ultimately a form of moral enquiry... and... that system specific debates about law’s content can never wholly be separated from the philosophical inquiry into the nature of law as such.’4 On the other hand, his colleague, Matthew Kramer, while conceding that law and morality occasionally intersect, robustly defends legal positivism against its detractors.5 A healthy difference of opinion? 2.1 Classical natural law theory ‘The best description of natural law’, according to one natural lawyer, ‘is that it provides a name for the point of intersection between law and morals.’6 There is an unquestionable tension between what ‘is’ and what ‘ought’ to be; theories of natural law attempt to resolve this. Its principal claim, put simply, is that what naturally is, ought to be. But this appar- ently uncomplicated proposition has been widely misunderstood and misinterpreted. An understanding of the essentials of natural law theory is therefore important.7 plato - pink 2.1.1 Plato and Aristotle aristotle - blue Among the Greek philosophers, it is particularly the ideas of Plato and Aristotle whose analyses of ethics are especially significant. For Plato the fundamentals of ethics lay in abso- lute values that things could emulate. For example, a beautiful object derives its beauty not from itself but from elements of beauty discovered within the object itself. We know beauty (a value) intuitively, although its precise content may be further extended by the applica- tion of reason. Another absolute Platonic value is justice which has an inherent connection to law: only laws that pursue the ideal of justice can be considered right. Indeed, according to Plato, justice is a universal value that transcends local customs or conventions. 2 In the early 1980s a professor—newly appointed to a law school abroad—was about to deliver his fi rst lecture in jurisprudence. He was greeted by a horde of rowdy students who refused to allow him to speak. The clamour continued for several minutes. Eventually he managed to impose a modicum of order, and asked why he had attracted such hostility. The students explained that it was because one of their lecturers had described him as a legal positivist. ‘But why would anyone think that?’ he enquired of a sea of puzzled faces. They did not know. When he explained that, as far as he knew, he was not positivist, the class quickly 3 settled down. The professor was me. Its extent should become evident in Chapter 4. 4 Nigel Simmonds, Law as a Moral Idea (Oxford: Oxford University Press, 2007), 6. 5 See, in particular, Matthew H Kramer, Where Law and Morality Meet (Oxford: Oxford University Press, 2004) and Matthew H Kramer, In Defense of Legal Positivism: Law Without Trimmings (Oxford: Clarendon 6 Press, 1999). A Passerin D’Entrèves, Natural Law (London: Hutchinson, 1970), 116. 7 A useful reader is Natural Law, edited (in two volumes) by John Finnis, in the International Library of Essays in Law and Legal Theory, published by Dartmouth in 1991. Most accounts of natural law to which you may be referred in your course normally sketch the ‘development’ of natural law thinking, starting with the Greeks and the Romans, through the religious teachings of St Thomas Aquinas and its secular (and political) adaptation by Grotius, Hobbes, Locke, Rousseau, and Blackstone. The decline of natural law theory in the nineteenth century (the rise of legal positivism after the attack by Hume) are then described—often to dem- onstrate that the ‘debate’ between natural lawyers and legal positivists, while important, is inconclusive. You will then learn of the ‘revival’ of natural law theory in the twentieth century. You will be expected to exhibit a knowledge of these developments, but too many students merely reel off these historical ‘developments’ (which they have committed to memory) without demonstrating a real grasp of what questions natural lawyers have sought to answer and explicate. 12 UNDER S TANDING JURISPRUDENCE Aristotle also sought to discover values by the application of reason. Unlike Plato, however, the source of these ideals is to be found in our human nature rather than in external, transcendent values. The natural world, Aristotle argues, contains elements of both stability and change. These conflicting forces are integrated by the concept of ‘telos’: the object or purpose to which things inexorably evolve. Humans are no less susceptible to this teleological process. We are social animals and therefore in order to flourish we require family and social groups. But we are also political animals and hence the polis—or state—exists in nature. It is our nature to live in a polis: it is indispensable to our thriving as human beings. And this has certain consequences for the law which should, amongst other things, further those elements that facilitate social life. In his Nicomachean Ethics, Aristotle suggests that ‘justice’ describes two different but related ideas: ‘general justice’ and ‘particular justice’. Our actions are generally just when we are wholly virtuous in all matters relating to others. Particular justice, on the other hand, refers specifically to treating others fairly or equitably. On this foundation, he develops the concept of ‘political justice’ which is derived partly from nature, and is partly a matter of convention. Natural justice is a thus a species of political justice. It is, in other words, the system of distributive and corrective justice that would be established under the best political community (see Chapter 9). 2.1.2 St Thomas Aquinas Aristotle’s ethical theory influenced the teachings of the Dominican, St Thomas Aquinas (1225–74), whose principal work Summa Theologiae contains the most comprehensive statement of Christian doctrine on the subject. The thirteenth century witnessed the development of European city-states. The Pope’s authority over these states was hampered through want of a theological stance in respect of the exercise of secular power. Previously, the foremost Christian thinker of the day, St Augustine, had merely endorsed the Biblical exhortation to ‘render... unto Caesar the things which are Caesar’s’. But Aquinas deployed Aristotle’s philosophy in an effort to reconcile secular and Christian authority. He argued that Christianity was a stage in the development of humanity that was unavailable to the Greeks. The polis in which we were destined to live was therefore Christian. For Aquinas natural law is merely one element of divine providence: it is a ‘participation’ in the eternal law—the rational plan that orders all creation. In other words, it is the means by which rational beings participate in the eternal law. Secondly, when human beings ‘receive’ natural law, its content comprises the principles of practical rationality by which human action is to be judged as reasonable or unreasonable. Indeed, for Aquinas it is this character- istic of natural law that justifies its description as ‘law’, for law, he claims, consists in rules of action declared by one who protects the interests of the community: since God defends and protects the universe, His decision to create rational beings with the capacity to act freely in accordance with reason entitles our regarding these principles as constituting ‘law’. The tenets of natural law are binding on us, Aquinas contends, because—as rational beings—we are guided towards them by nature; they point us toward the good, as well as certain specific goods. Moreover, these principles are known to us by virtue of our nature: we demonstrate this knowledge in our inherent aspiration to achieve the various goods that natural law exhorts us to pursue. We are able to discern the essence of practical knowledge, though the precise practical consequences of that understanding may often be difficult to determine. And, Aquinas acknowledges, our passion or malevolence may obstruct their application. At the heart of the Thomist interpretation of natural law is the basic notion that good is done and evil avoided. In practical terms this means that we ought to pursue some NATUR AL L AW AND MOR ALIT Y 13 specific good. And we know, by inclination, what these goods are: they include life, knowledge, procreation, society, and reasonable conduct. For him the good is prior to the right. Whether an act is right is less important than whether it achieves or is some good. We are, he suggests, capable of reasoning from these principles about goods to practical means by which to realize these goods. But how do we know when an act is fundamentally unsound? There is no simple yard- stick; we must scrutinize features of the acts in question, such as their objects, their ends, the circumstances under which they are carried out. For example, Aquinas contends that certain acts may be defective by virtue of their intention: acting against a good, as occurs when one commits a murder, tells a lie, or blasphemes. While he resists stating universal, absolute, eternal principles of right conduct, he does claim that natural law regards it as always wrong to kill the innocent, to lie, blaspheme, or to indulge in adultery and sodomy, and that they are always wrong is a matter of natural law. The leading (and most accessible) contemporary proponent of natural law, John Finnis (discussed below at 2.6) expresses it as follows in Natural Law and Natural Rights: anyone who tries to explain law, makes assumptions, willy-nilly, about what is ‘good’— It is often supposed that an evaluation of law as a type of social institution, if it is to be undertaken at all, must be preceded by a value-free description and analysis of that insti- tution as it exists in fact. But the development of modern jurisprudence suggests, and reflection on the methodology of any social science confirms, that a theorist cannot give a theoretical description and analysis of social facts, unless he also participates in the work of evaluation, of understanding what is really good for human persons, and what is really required by practical reasonableness.8 This constitutes an important challenge to the alleged ‘objectivity’ or scientific method- ology of legal positivism. But it also represents an incisive philosophical starting point of the natural law approach. It suggests that when we are discerning what is good, we are using our intelligence differently from when we are discerning what exists. In other words, if we are to understand the nature and impact of the natural law project, we must recognize that it yields ‘a different logic’.9 Aquinas distinguishes between four categories of law, as illustrated in Table 2.1. He contends that human posited law draws its power to bind from natural law. His ‘defi- nition’ of natural law (above) speaks of participation of the eternal law in rational creatures (‘participatio legis aeternae in rationali creatura’). This proposition is elucidated well by Finnis. Aquinas does not mean ‘participation’ in the normal sense of the word. As Finnis explains: For Aquinas, the word participatio focally signifies two conjoined concepts, causality and similarity (or imitation). A quality that an entity or state of affairs has or includes is participated, in Aquinas’s sense, if that quality is caused byy a similarr quality which some other entity or state of affairs has or includes in a more intrinsic or less dependent way. Aquinas’s notion of natural law as a participation of the eternal law is no more than a straightforward application of his general theory of the cause and operation of human understanding in any field or inquiry.10 8 Finnis, Natural Law and Natural Rights, 2nd edn (Oxford: Oxford University Press, 2011), 3. 9 10 Ibid, 34. Ibid, 399. 14 UNDER S TANDING JURISPRUDENCE Table 2.1 Aquinas’s four categories of law 1. Lex aeterna (eternal law) Divine reason—known only to God. God’s plan for the Universe. Man needs this law without which he would totally lack direction. 2. Lex naturalis (natural law) Participation of the eternal law in rational creatures. Discoverable by reason. 3. Lex divina (divine law) Revealed in the scriptures (God’s positive law for mankind). 4. Lex humana (humanly posited law) Supported by reason. Enacted for the common good. Necessary because the lex naturalis cannot solve many day-to-day problems. Also, people are selfish; compulsion is required to force them to act reasonably. His theory of understanding may be very briefly summarized as follows: Aquinas (follow- ing Plato and Aristotle) postulates a ‘separate intellect’ which causes in us our own power of insight. Humans, as opposed to animals, ‘participate’ in natural law in this sense: we are able to grasp the essential principles of natural law, that is, human nature’s Creator’s intelligent and intelligible plan for human flourishing. But we grasp it not by any kind of direct knowledge of the divine mind, but rather: ‘all those things to which man has a natural inclination, one’s reason naturally understands as good (and thus as “to be pur- sued”) and their contraries as bad (and as “to be avoided”)’.11 His analysis of natural law distinguishes between primary and secondary principles; the former may be supplemented by new principles, but not subtracted from. The latter may, in exceptional circumstances, be susceptible to change. But he does not tell us on what basis this distinction is drawn: which principles are primary? Nor does he explain how the secondary principles are derived from the primary ones. An important claim routinely linked with Aquinas (and one which, according to Finnis, has been widely misconstrued) is that a ‘law’ which fails to conform to natural or divine law is not a law at all. This is normally expressed in the maxim ‘lex iniusta non est lex’ (an unjust law is not law). It appears that Aquinas himself never made this contention, but merely quoted St Augustine. Certainly Plato, Cicero, and Aristotle expressed similar sentiments, yet it is a proposition that is most closely associated with Aquinas.12 What Aquinas seems to have said was that laws which conflict with the requirements of natural law lose their power to bind morally. In other words, a government which abuses its authority by enacting laws which are unjust (unreasonable or against the common good) forfeits its right to be obeyed—because it lacks moral authority. Aquinas calls any such law a ‘corruption of law’. But he does not suggest that one is always justified in disobeying it, for though he says that if a ruler enacts unjust laws ‘their subjects are not obliged to obey them’, he adds ‘except, perhaps, in certain special cases when it is a matter of avoiding “scandal”’ (ie, a corrupting example to others) or civil disorder.13 This is a far cry from the radical claims sometimes 11 Summa Theologiae, II/ I, 94, 2. 12 See Finnis, Natural Law and Natural Rights, 363–6, for a powerful refutation not only of the view itself but also the suggestion that Aquinas held it in the naive sense in which many jurisprudence textbooks 13 present it. Summa Theologiae, I/II, 96, 4. NATUR AL L AW AND MOR ALIT Y 15 made in the name of Aquinas which seek to justify disobedience to law. In 2.11 I attempt to show the difficulties and limitations of natural law when invoked in an unjust society. In his 2011 postscript, Finnis describes as ‘loose’ the proposition that natural law ‘accords to iniquitous rules legal validity’. Natural law, he affirms, ‘accepts that iniquitous rules may satisfy the legal system’s criteria of legal validity, and where they do, it does not seek to deny that fact, unless the system itself provides a juridical basis for treating these otherwise valid rules as legally invalid (directly or indirectly) of their iniquity.’14 It would be illusory to seek or attempt a ‘definition’ of natural law, but Cicero’s Stoic pronouncement in De Re Publica,15 contains the three main components of any natural law philosophy: True law is right reason in agreement with Nature; it is of universal application, unchang- ing and everlasting.... It is a sin to try to alter this law, nor is it allowable to attempt to repeal any part of it, and it is impossible to abolish it entirely.... [God] is the author of this law, its promulgator, and its enforcing judge. This formulation stresses natural law’s: universality and immutability; standing as a ‘higher’ law; and discoverability by reason (it is in this sense ‘natural’). Any account of natural law should—at the very least—incorporate these three elements. But note Brian Bix’s important observation: Contrary to a lay person’s expectations, natural law often has little if anything to do with ‘law’ as that term is conventionally used. The ‘law’ in natural law theory usually refers to the orders or principles laid down by higher powers that we should follow.16 This has not, however, prevented natural law from being deployed in contemporary moral and political argument in respect of a range of issues from world government to oral sex.17 As you might expect, there are differences and disagreement concerning its fundamen- tal principles. The classical natural law tradition accentuates the importance of reason. Thus Finnis emphasizes the centrality of reason in answering the question (posed by a conscientious individual, a group, or an official): ‘What should I do?’ This tradition, according to Finnis,... has a clear understanding that one cannot reasonably affi rm the equality of human beings, or the universality and binding force of human rights, unless one acknowledges that there is something about persons which distinguishes them radically from sub-rational creatures, and which, prior to any acknowledgement of ‘status’, is intrinsic to the factual reality of every human being, adult or immature, healthy or disabled.18 14 15 Finnis, op cit, 476. Book 3, Ch 22, sect 33. 16 Brian H Bix, ‘Natural Law: The Modern Tradition’ in Jules Coleman and Scott Shapiro (eds), The Oxford Handbook of Jurisprudence and Philosophy of Law (Oxford: Oxford University Press, 2002), 70–1. 17 See, eg, Robert George’s closely reasoned arguments against ‘non-marital orgasmic acts’, pornography, abortion, and homosexuality from a natural law standpoint in Robert P George, In Defense of Natural Law (Oxford: Oxford University Press, 1999), Parts 2 and 3. 18 John Finnis, ‘Natural Law: The Classical Tradition’ in Coleman and Shapiro (eds), The Oxford Handbook of Jurisprudence and Philosophy of Law, 4. 16 UNDER S TANDING JURISPRUDENCE 2.2 Contemporary natural law theory There is some truth in the observation by Alf Ross (the Scandinavian realist, see 6.3.1) that ‘like a harlot, natural law is at the disposal of everyone’.19 The theory has been employed to justify both revolution and reaction. During the sixth century bc, the Greeks described human laws as owing their importance in the scheme of things to the power of fate which controlled everything. This conservative view could be (and presumably was) used to justify—however evil—features of the status quo. By the fifth century bc, however, it was acknowledged that there might be a conflict between the law of nature and the law of man. With Aristotle there is less reference to natural law than to the distinction between nat- ural and conventional justice. It was the Stoics who were especially attracted to the notion of natural law where ‘natural’ meant in accordance with reason. The Stoic view informed the approach adopted by the Romans (as expressed by Cicero) who recognized (at least in theory) that laws which did not conform with ‘reason’ might be regarded as invalid.20 It was, however, the Catholic Church that gave expression to the full-blown philosophy of natural law as we understand it today. As early as the fifth century, St Augustine asked, ‘What are States without justice, but robber bands enlarged?’21 In about 1140, Gratian pub- lished his Decretum, a collection of some 4,000 texts dealing with numerous aspects of church discipline which he sought to reconcile. His work begins by declaring, in keeping with the medieval conception of natural law: ‘Mankind is governed by two laws: the law of nature and custom. The law of nature is contained in the scriptures and the gospel.’ But he continues, ‘Natural law overrides customs and constitutions. That which has been recog- nised by usage, or recorded in writing, if it contradicts natural law, is void and of no effect.’ As discussed above, the comprehensive account of the tenets of natural law by Aquinas has been most influential. By the seventeenth century in Europe, the exposition of entire branches of the law (notably public international law) purported to be founded on natural law. Hugo de Groot (1583–1645), or Grotius as he is generally called, is normally associated with the secularization of natural law. In his influential work De Jure Belli ac Pacis he asserts that even if God did not exist (‘etiamsi daremus non esse Deum’) natural law would have the same content. This proved to be an important basis for the developing discipline of pub- lic international law, though exactly what Grotius means when he postulates his etiamsi daremus idea is not entirely clear.22 My own view is that he regarded certain things as ‘intrinsically’ wrong—whether or not they are decreed by God; for, to use Grotius’s own analogy, even God cannot cause two times two not to equal four. In saying this, however, he is not denying the existence of God (as is sometimes suggested); he is stressing that what is right or wrong are matters of natural appropriateness, not of arbitrary divine fiat. In England the high-water mark of natural law was reached in the eighteenth cen- tury with Sir William Blackstone’s Commentaries on the Laws of England. Blackstone (1723–80) commences his great work by adumbrating classical natural law doctrine—in order, it has been argued,23 to sanctify English law by this appeal to God-given principles. But, while he makes various claims about positive law deriving its authority from natural 19 Alf Ross, On Law and Justice, transl Margaret Dutton (London: Stevens & Sons, 1958), 261. 20 An interesting attempt to apply Cicero’s conception of natural law to contemporary problems of jus- tice and rights is made by Hadley Arkes in Robert P George (ed), Natural Law Theory: Contemporary Essays 21 (Oxford: Oxford University Press, 1992), 245. City of God, Book 4, iv. 22 For differing interpretations contrast D’Entrèves, Natural Law, 53–6, and Finnis, Natural Law and Natural Rights, 43–4. 23 See D Kennedy, ‘The Structure of Blackstone’s Commentaries’ (1979) 28 Buffalo Law Review 205. NATUR AL L AW AND MOR ALIT Y

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