Two Alternatives to Legal Positivism

Legal Realism (Oliver Wendell Legal Realism (Oliver Wendell Holmes, Jr., Jerome Frank)Holmes, Jr., Jerome Frank)

Natural Law Theory Natural Law Theory (Aristotle, Aquinas, Fuller)(Aristotle, Aquinas, Fuller)

Legal Realism

There really are no legal rules. There really are no legal rules. Appeals to rules are mere Appeals to rules are mere rationalizations of the decisions rationalizations of the decisions of judges made on extra-legal of judges made on extra-legal grounds.grounds.

The discipline of law consists The discipline of law consists simply in predicting what judges simply in predicting what judges will do. Law is a branch of will do. Law is a branch of sociology: studying patterns of sociology: studying patterns of behavior.behavior.

Natural Law Theory Positive law can be properly Positive law can be properly understood only by analyzing it as understood only by analyzing it as the concrete realization of the the concrete realization of the abstract principles and functions abstract principles and functions of natural law.of natural law.

Human beings are by nature Human beings are by nature political animals. Certain forms political animals. Certain forms of social organization are of social organization are essential to human existence. essential to human existence. These essential forms constitute These essential forms constitute the natural law.the natural law.

Three Versions Natural law is grounded in human Natural law is grounded in human nature, understood biologically. nature, understood biologically. (Aristotle)(Aristotle)

Natural law is grounded in certain Natural law is grounded in certain biological facts, but it is binding as biological facts, but it is binding as law only because it is backed up by law only because it is backed up by God's commands. (Late Scholasticism)God's commands. (Late Scholasticism)

The natural law consists of the axioms The natural law consists of the axioms of practical reason, i.e., self-of practical reason, i.e., self-evident, quasi-logical truths about evident, quasi-logical truths about what is good and right. (Kant, Grisez, what is good and right. (Kant, Grisez, Finnis)Finnis)

Weak or Minimal NLT

If a so-called "law" fails utterly If a so-called "law" fails utterly to realize the principles of to realize the principles of natural law (if it fundamentally natural law (if it fundamentally contradicts natural law), then it contradicts natural law), then it is null and void, no law at all.is null and void, no law at all.

However, natural law has no However, natural law has no binding force in and of itself binding force in and of itself until it is enacted into positive until it is enacted into positive law.law.

Strong or Maximal NLT

Positive law has no validity Positive law has no validity when in conflict with natural when in conflict with natural law, law,

but the natural law can in some but the natural law can in some cases be valid and binding in cases be valid and binding in the absence of positive law. the absence of positive law. – For example, the prosecution of For example, the prosecution of Nazi war criminals for "crimes Nazi war criminals for "crimes against humanity".against humanity".

Hart's critique, and an NLT response

Hart assumes that, according to Hart assumes that, according to NLT, a positive law is a society's NLT, a positive law is a society's attempt to realize natural law. A attempt to realize natural law. A failed attempt is still an attempt, failed attempt is still an attempt, so a positive law is still law, so a positive law is still law, even if it contradicts natural law.even if it contradicts natural law.

Positive law is not merely the Positive law is not merely the attempt attempt to realize natural law, to realize natural law, it it is the realization is the realization of natural law, of natural law, in part or in whole.in part or in whole.

What is it to be a Law?

To be an X, a thing must be To be an X, a thing must be capable of at least partially capable of at least partially fulfilling the function of X. fulfilling the function of X. – a severed hand is no longer a hand, a severed hand is no longer a hand, – a corpse is no longer a human body,a corpse is no longer a human body,– a meaningless sentence is not really a meaningless sentence is not really a sentence,a sentence,

– an unjust law is not a law.an unjust law is not a law.

Aquinas’s NLT

Human beings are constituted by Human beings are constituted by the pursuit of a certain fixed the pursuit of a certain fixed end, namely, “happiness”. end, namely, “happiness”.

Human beings flourish, or fail to Human beings flourish, or fail to flourish, according to how well flourish, according to how well they pursue this end. Some they pursue this end. Some humans pursue happiness badly as humans pursue happiness badly as a result of confusion about what a result of confusion about what happiness consists in.happiness consists in.

Reason & Conscience

Human beings have a power of pursuing Human beings have a power of pursuing knowledge: reason.knowledge: reason.

In the practical sphere, reason’s role In the practical sphere, reason’s role is to achieve clarity about the is to achieve clarity about the ultimate end (happiness) and to ultimate end (happiness) and to discover the means (actions) to discover the means (actions) to happiness.happiness.

Once reason does so, it issues Once reason does so, it issues “commands” to the will, whose function “commands” to the will, whose function is to carry out these commands in is to carry out these commands in action.action.

Moral Law and Happiness

The natural (moral) law consists The natural (moral) law consists simply of those commands that a simply of those commands that a properly functioning, well-informed properly functioning, well-informed human being’s reason would command.human being’s reason would command.

The moral law enables us to achieve The moral law enables us to achieve our natural end (happiness). our natural end (happiness). Harmony between enlightened self-Harmony between enlightened self-interest and justice.interest and justice.

Political Authority

Human beings are naturally Human beings are naturally social/political animals.social/political animals.

Individual happiness is possible Individual happiness is possible only in a social context of justice only in a social context of justice & friendship. This “common good” is & friendship. This “common good” is a precondition of all individual a precondition of all individual welfare.welfare.

It is natural that some have It is natural that some have authority over others, for the sake authority over others, for the sake of the common good.of the common good.

Positive Law

Political authorities can further Political authorities can further the common good by forcing the common good by forcing everyone to show at least minimal everyone to show at least minimal respect for the natural law. This respect for the natural law. This simply reinforces the authority of simply reinforces the authority of individual conscience/reason.individual conscience/reason.

The state must use prudence, The state must use prudence, weighing the costs of enforcement weighing the costs of enforcement and the good of promoting justice.and the good of promoting justice.

NLT and Anarchy

John Austin argued that even weak John Austin argued that even weak NLT leads to anarchy.NLT leads to anarchy.

Does NLT encourage more Does NLT encourage more lawlessness than LP?lawlessness than LP?– LP denies that legal validity entails LP denies that legal validity entails a moral obligation to obey the law.a moral obligation to obey the law.

– Utilitarians recommend deciding Utilitarians recommend deciding whether to follow the law on a case whether to follow the law on a case by case basis, with reference to by case basis, with reference to utility.utility.

NLT, LP and Lawlessness

Aquinas argues that we should obey Aquinas argues that we should obey an unjust “law”, unless doing so an unjust “law”, unless doing so creates more harm than the damage creates more harm than the damage we would do to the legal system by we would do to the legal system by undermining public respect for it undermining public respect for it by defying it.by defying it.

NLT actually gives NLT actually gives moremore moral moral weight to following putative weight to following putative positive law than LP does.positive law than LP does.

Divine/Eternal Law and Human/Positive law

Kelsen charges that, according, to Kelsen charges that, according, to NLT, positive law is a “useless NLT, positive law is a “useless duplication of natural law”.duplication of natural law”.

Three distinctions:Three distinctions:– Fundamental vs. derived rulesFundamental vs. derived rules– Natural law is abstract & generic; Natural law is abstract & generic; positive law is determinate, adapted to positive law is determinate, adapted to circumstancescircumstances

– Positive law is enforced by sanctions. Not Positive law is enforced by sanctions. Not all of the natural law is, can or should all of the natural law is, can or should be so enforced.be so enforced.

Fundamental & Derived Laws

The natural law consists only of The natural law consists only of the first principles of practical the first principles of practical reason: do what is good, avoid reason: do what is good, avoid what is evil.what is evil.

The human legislator must reason The human legislator must reason from these first principles to from these first principles to derived rules, such as: do not derived rules, such as: do not murder, do not slander, etc.murder, do not slander, etc.

This derivation is fallible, This derivation is fallible, correctable.correctable.

Abstract vs. determinate

The natural law, even when derived The natural law, even when derived rules are included, is indeterminate, rules are included, is indeterminate, especially with respect to quantities especially with respect to quantities (speed limits, age qualifications, (speed limits, age qualifications, severity of punishment).severity of punishment).

The natural law needs to be The natural law needs to be supplemented with arbitrary supplemented with arbitrary conventions in order to solve various conventions in order to solve various coordination problems (e.g. drive on coordination problems (e.g. drive on the right/left).the right/left).

Political Enforcement of the Positive Law

The political authorities of a The political authorities of a community must enforce a minimal community must enforce a minimal degree of justice & morality, in degree of justice & morality, in accordance with the natural law.accordance with the natural law.

Such coercion is a blunt instrument. Such coercion is a blunt instrument. Its use carries with it various Its use carries with it various costs, inconveniences, and dangers.costs, inconveniences, and dangers.

Thus, it is not prudent to try to Thus, it is not prudent to try to enforce every moral rule.enforce every moral rule.

Judges and the Enforcement of Unjust

Statutes A judge following NLT can A judge following NLT can honestly set aside a statute honestly set aside a statute that contradicts natural law, that contradicts natural law, while still acting as a while still acting as a judge, applying the law.judge, applying the law.

A judge following LP cannot A judge following LP cannot do so. He has four options:do so. He has four options:

LP and Unjust Laws

LP Judge’s options:LP Judge’s options: Enforce the unjust statute.Enforce the unjust statute. Openly disregard and defy the law.Openly disregard and defy the law. Resign or recuse himself from the Resign or recuse himself from the case.case.

Dishonestly adopt NLT to Dishonestly adopt NLT to rationalize the decision to set rationalize the decision to set aside the statute.aside the statute.

Austin on Unjust Laws

To say that an unjust law is not To say that an unjust law is not legally binding is “stark nonsense”.legally binding is “stark nonsense”.

““The Court of Justice will The Court of Justice will demonstrate the inconclusiveness of demonstrate the inconclusiveness of my reasoning by hanging me up.”my reasoning by hanging me up.”

A plea founded on appeal to the laws A plea founded on appeal to the laws of God [or natural law] was never of God [or natural law] was never heard in a Court.heard in a Court.

Conclusive?Conclusive?

Natural Law and the American Constitution

Ancient, medieval and common-law Ancient, medieval and common-law tradition recognized the propriety tradition recognized the propriety of "equitable construction": of "equitable construction": interpreting a statute so as to make interpreting a statute so as to make it conform to natural principles of it conform to natural principles of justice, even if this means setting justice, even if this means setting aside its literal meaning.aside its literal meaning.

Did this tradition become Did this tradition become incorporated into the unwritten incorporated into the unwritten constitution of the U.S.?constitution of the U.S.?

Aristotle on Equity and the Law

...all law is universal but about ...all law is universal but about some things it is not possible to some things it is not possible to make a universal statement which make a universal statement which shall be correct. In those cases, shall be correct. In those cases, then, if it is necessary to speak then, if it is necessary to speak universally but not possible to do universally but not possible to do so correctly, the law takes the so correctly, the law takes the usual case, though it is not usual case, though it is not ignorant of the possibility of ignorant of the possibility of error.error.

When the law speaks universally, When the law speaks universally, then, and a case arises on it then, and a case arises on it which is not covered by the which is not covered by the universal statement, then it is universal statement, then it is right, where the legislator fails right, where the legislator fails us and has erred by over-us and has erred by over-simplicity, to correct the simplicity, to correct the omission -- to say what the omission -- to say what the legislator himself would have said legislator himself would have said had he been present, and would had he been present, and would have put into his law had he have put into his law had he known. And this is the nature of known. And this is the nature of the equitable, a correction of law the equitable, a correction of law where it is defective owing to its where it is defective owing to its universality. (NE, Bk. V, sec. 10)universality. (NE, Bk. V, sec. 10)

Equitable Construction

In the Middle Ages, this was In the Middle Ages, this was broadened to include cases where the broadened to include cases where the law was deficient by excessive law was deficient by excessive particularity: extensive equitable particularity: extensive equitable construction.construction.

Hamilton: "Many things within the Hamilton: "Many things within the letter of the statute are not within letter of the statute are not within its equity, and vice versa." (its equity, and vice versa." (The The Law Practice of A. Hamilton, Law Practice of A. Hamilton, Volume Volume I, p. 357)I, p. 357)

Early appeals to natural law by Supreme

Court. Chief Justice Chase, in Chief Justice Chase, in Calder v. Bull Calder v. Bull (1798)(1798)

Chief Justice Marshall in Chief Justice Marshall in Fletcher v. PeckFletcher v. Peck, 6 Cranch 87 , 6 Cranch 87 (1810)(1810)

Chief Justice Chase, in Chief Justice Chase, in Calder Calder v. Bullv. Bull

The purposes for which men enter The purposes for which men enter into society will determine the into society will determine the nature and terms of the social nature and terms of the social compact. An Act of the compact. An Act of the Legislature (for I cannot call it Legislature (for I cannot call it a law) contrary to the great first a law) contrary to the great first principles of the social compact principles of the social compact cannot be considered a rightful cannot be considered a rightful exercise of legislative exercise of legislative authority....authority....

It is against all reason and justice It is against all reason and justice for a people to entrust a for a people to entrust a Legislature with such powers [as ex Legislature with such powers [as ex post facto laws, impairing post facto laws, impairing contracts, making someone a judge in contracts, making someone a judge in his own case]; and, therefore, it his own case]; and, therefore, it cannot be presumed that they have cannot be presumed that they have done it. The genius, the nature, and done it. The genius, the nature, and the Spirit of our State Governments, the Spirit of our State Governments, amount to a prohibition of such acts amount to a prohibition of such acts of legislation....[Legislatures] of legislation....[Legislatures] cannot change innocence into guilt, cannot change innocence into guilt, or punish innocence as a crime." (at or punish innocence as a crime." (at 388)388)

Marshall in Fletcher v. Peck

"It may well be doubted whether the "It may well be doubted whether the nature of society and of government nature of society and of government does not prescribe some limits to does not prescribe some limits to the legislative power ... the the legislative power ... the question, whether the act of question, whether the act of transferring the property of an transferring the property of an individual to the public, to be in individual to the public, to be in the nature of the legislative the nature of the legislative power, is well worthy of serious power, is well worthy of serious reflection.reflection.

It is the peculiar province of It is the peculiar province of the legislature to prescribe the legislature to prescribe general rules for the government general rules for the government of society; the application of of society; the application of those rules to individuals in those rules to individuals in society would seem to be the society would seem to be the duty of other departments.”duty of other departments.”

Examples of what Lon Fuller Examples of what Lon Fuller called “procedural natural law”.called “procedural natural law”.

Lon Fuller’s “Inner Morality of the Law”

Fuller argues that certain moral Fuller argues that certain moral rules, such as the obligation of rules, such as the obligation of the legislator and judge to be the legislator and judge to be clear and consistent, and the ban clear and consistent, and the ban on ex post facto laws, can be on ex post facto laws, can be derived from the nature of a derived from the nature of a society governed by rules.society governed by rules.

Merely “procedural”? Merely “procedural”? What about monstrously unjust What about monstrously unjust laws?laws?

Riggs v. Palmer, 115 NY 506 (1889)

Elmer Palmer murdered his Elmer Palmer murdered his grandfather, who left Elmer the grandfather, who left Elmer the bulk of his estate in his will. bulk of his estate in his will.

The NY statutes provided no The NY statutes provided no exception in the case of exception in the case of murderous heirs. murderous heirs.

NY Supreme Court ruled against NY Supreme Court ruled against Palmer, employing equitable Palmer, employing equitable construction of the statute.construction of the statute.

Judges and the NLT

NL theorists can recognize the NL theorists can recognize the distinction between legislators and distinction between legislators and judges. Legislators create positive judges. Legislators create positive law: judges don’t.law: judges don’t.

This distinction is blurred by legal This distinction is blurred by legal positivists in “penumbral cases”. It positivists in “penumbral cases”. It is denied by legal realists.is denied by legal realists.

In penumbral cases (where existing In penumbral cases (where existing law is indeterminate), Hart argues law is indeterminate), Hart argues that judges make law, with reference that judges make law, with reference to “social aims” and policy.to “social aims” and policy.

Judges and Deference

NL theorists can embrace a version of NL theorists can embrace a version of Thayer’s rule. Thayer’s rule.

All of us have fallible access to the All of us have fallible access to the derived rules of the natural law.derived rules of the natural law.

It is the job of legislators to create It is the job of legislators to create positive law that realizes the positive law that realizes the functions of the natural law. functions of the natural law.

Judges should set aside statutes only Judges should set aside statutes only when the violation of natural law is when the violation of natural law is unmistakable.unmistakable.

Test Cases

The Grudge InformerThe Grudge Informer The Nuremberg TrialsThe Nuremberg Trials The Fugitive Slave CasesThe Fugitive Slave Cases

The Grudge Informer

A hypothetical case, invented by Lon A hypothetical case, invented by Lon Fuller.Fuller.

A woman, living in a Nazi-like regime, A woman, living in a Nazi-like regime, informs on her husband for anti-informs on her husband for anti-government activity. He is arrested and government activity. He is arrested and executed.executed.

After the war in which the regime is After the war in which the regime is defeated, the woman is charged with defeated, the woman is charged with murder.murder.

Similar cases actually occurred in post-Similar cases actually occurred in post-war Germany, in 1949 and 1950.war Germany, in 1949 and 1950.

Actual case

Woman informed on husband for making Woman informed on husband for making disparaging remarks about Hitler, after disparaging remarks about Hitler, after husband discovered wife with another husband discovered wife with another man.man.

Wife charged after war with attempted Wife charged after war with attempted murder and unlawful deprivation of murder and unlawful deprivation of liberty.liberty.

Jury in Wurzburg acquitted, but Federal Jury in Wurzburg acquitted, but Federal Supreme Court overturned decision in Supreme Court overturned decision in 1950 (BGHST 3, 110-129), relying on 1950 (BGHST 3, 110-129), relying on Criminal Code of 1871.Criminal Code of 1871.

Options for Case

Acquittal: wife conformed to laws of Acquittal: wife conformed to laws of time.time.

Dismissal, because the Nazi regime was Dismissal, because the Nazi regime was utterly lawless, a “state of nature”.utterly lawless, a “state of nature”.

Guilt, because some laws (against murder) Guilt, because some laws (against murder) were valid, while others (condemning were valid, while others (condemning anti-Hitler comments) were not.anti-Hitler comments) were not.

Guilt, by applying a frankly ex post Guilt, by applying a frankly ex post facto law.facto law.

Extra-legal vengeance/Extra-legal vengeance/

Nuremberg Trials

Applied the Hague Convention of Applied the Hague Convention of 1905, Geneva Convention of 1927. 1905, Geneva Convention of 1927. But these provided for no But these provided for no penalties.penalties.

In addition, invented the category In addition, invented the category of “crimes against humanity”.of “crimes against humanity”.

Churchill argued for summary Churchill argued for summary executions, on positivist grounds. executions, on positivist grounds. Nuremberg - travesty of the rule Nuremberg - travesty of the rule of law.of law.