two alternatives to legal positivism legal realism (oliver wendell holmes, jr., jerome frank) legal...

Download Two Alternatives to Legal Positivism Legal Realism (Oliver Wendell Holmes, Jr., Jerome Frank) Legal Realism (Oliver Wendell Holmes, Jr., Jerome Frank)

Post on 30-Mar-2015

214 views

Category:

Documents

1 download

Embed Size (px)

TRANSCRIPT

  • Slide 1

Two Alternatives to Legal Positivism Legal Realism (Oliver Wendell Holmes, Jr., Jerome Frank) Legal Realism (Oliver Wendell Holmes, Jr., Jerome Frank) Natural Law Theory (Aristotle, Aquinas, Fuller) Natural Law Theory (Aristotle, Aquinas, Fuller) Slide 2 Legal Realism There really are no legal rules. Appeals to rules are mere rationalizations of the decisions of judges made on extra-legal grounds. There really are no legal rules. Appeals to rules are mere rationalizations of the decisions of judges made on extra-legal grounds. The discipline of law consists simply in predicting what judges will do. Law is a branch of sociology: studying patterns of behavior. The discipline of law consists simply in predicting what judges will do. Law is a branch of sociology: studying patterns of behavior. Slide 3 Natural Law Theory Positive law can be properly understood only by analyzing it as the concrete realization of the abstract principles and functions of natural law. Positive law can be properly understood only by analyzing it as the concrete realization of the abstract principles and functions of natural law. Human beings are by nature political animals. Certain forms of social organization are essential to human existence. These essential forms constitute the natural law. Human beings are by nature political animals. Certain forms of social organization are essential to human existence. These essential forms constitute the natural law. Slide 4 Three Versions Natural law is grounded in human nature, understood biologically. (Aristotle) Natural law is grounded in human nature, understood biologically. (Aristotle) Natural law is grounded in certain biological facts, but it is binding as law only because it is backed up by God's commands. (Late Scholasticism) Natural law is grounded in certain biological facts, but it is binding as law only because it is backed up by God's commands. (Late Scholasticism) The natural law consists of the axioms of practical reason, i.e., self-evident, quasi- logical truths about what is good and right. (Kant, Grisez, Finnis) The natural law consists of the axioms of practical reason, i.e., self-evident, quasi- logical truths about what is good and right. (Kant, Grisez, Finnis) Slide 5 Weak or Minimal NLT If a so-called "law" fails utterly to realize the principles of natural law (if it fundamentally contradicts natural law), then it is null and void, no law at all. If a so-called "law" fails utterly to realize the principles of natural law (if it fundamentally contradicts natural law), then it is null and void, no law at all. However, natural law has no binding force in and of itself until it is enacted into positive law. However, natural law has no binding force in and of itself until it is enacted into positive law. Slide 6 Strong or Maximal NLT Positive law has no validity when in conflict with natural law, Positive law has no validity when in conflict with natural law, but the natural law can in some cases be valid and binding in the absence of positive law. but the natural law can in some cases be valid and binding in the absence of positive law. For example, the prosecution of Nazi war criminals for "crimes against humanity". Slide 7 Hart's critique, and an NLT response Hart assumes that, according to NLT, a positive law is a society's attempt to realize natural law. A failed attempt is still an attempt, so a positive law is still law, even if it contradicts natural law. Hart assumes that, according to NLT, a positive law is a society's attempt to realize natural law. A failed attempt is still an attempt, so a positive law is still law, even if it contradicts natural law. Positive law is not merely the attempt to realize natural law, it is the realization of natural law, in part or in whole. Positive law is not merely the attempt to realize natural law, it is the realization of natural law, in part or in whole. Slide 8 What is it to be a Law? To be an X, a thing must be capable of at least partially fulfilling the function of X. a severed hand is no longer a hand, a corpse is no longer a human body, a meaningless sentence is not really a sentence, an unjust law is not a law. Slide 9 Aquinass NLT Human beings are constituted by the pursuit of a certain fixed end, namely, happiness. Human beings are constituted by the pursuit of a certain fixed end, namely, happiness. Human beings flourish, or fail to flourish, according to how well they pursue this end. Some humans pursue happiness badly as a result of confusion about what happiness consists in. Human beings flourish, or fail to flourish, according to how well they pursue this end. Some humans pursue happiness badly as a result of confusion about what happiness consists in. Slide 10 Reason & Conscience Human beings have a power of pursuing knowledge: reason. Human beings have a power of pursuing knowledge: reason. In the practical sphere, reasons role is to achieve clarity about the ultimate end (happiness) and to discover the means (actions) to happiness. In the practical sphere, reasons role is to achieve clarity about the ultimate end (happiness) and to discover the means (actions) to happiness. Once reason does so, it issues commands to the will, whose function is to carry out these commands in action. Once reason does so, it issues commands to the will, whose function is to carry out these commands in action. Slide 11 Moral Law and Happiness The natural (moral) law consists simply of those commands that a properly functioning, well-informed human beings reason would command. The natural (moral) law consists simply of those commands that a properly functioning, well-informed human beings reason would command. The moral law enables us to achieve our natural end (happiness). Harmony between enlightened self-interest and justice. The moral law enables us to achieve our natural end (happiness). Harmony between enlightened self-interest and justice. Slide 12 Political Authority Human beings are naturally social/political animals. Human beings are naturally social/political animals. Individual happiness is possible only in a social context of justice & friendship. This common good is a precondition of all individual welfare. Individual happiness is possible only in a social context of justice & friendship. This common good is a precondition of all individual welfare. It is natural that some have authority over others, for the sake of the common good. It is natural that some have authority over others, for the sake of the common good. Slide 13 Positive Law Political authorities can further the common good by forcing everyone to show at least minimal respect for the natural law. This simply reinforces the authority of individual conscience/reason. Political authorities can further the common good by forcing everyone to show at least minimal respect for the natural law. This simply reinforces the authority of individual conscience/reason. The state must use prudence, weighing the costs of enforcement and the good of promoting justice. The state must use prudence, weighing the costs of enforcement and the good of promoting justice. Slide 14 NLT and Anarchy John Austin argued that even weak NLT leads to anarchy. John Austin argued that even weak NLT leads to anarchy. Does NLT encourage more lawlessness than LP? Does NLT encourage more lawlessness than LP? LP denies that legal validity entails a moral obligation to obey the law. Utilitarians recommend deciding whether to follow the law on a case by case basis, with reference to utility. Slide 15 NLT, LP and Lawlessness Aquinas argues that we should obey an unjust law, unless doing so creates more harm than the damage we would do to the legal system by undermining public respect for it by defying it. Aquinas argues that we should obey an unjust law, unless doing so creates more harm than the damage we would do to the legal system by undermining public respect for it by defying it. NLT actually gives more moral weight to following putative positive law than LP does. NLT actually gives more moral weight to following putative positive law than LP does. Slide 16 Divine/Eternal Law and Human/Positive law Kelsen charges that, according, to NLT, positive law is a useless duplication of natural law. Kelsen charges that, according, to NLT, positive law is a useless duplication of natural law. Three distinctions: Three distinctions: Fundamental vs. derived rules Natural law is abstract & generic; positive law is determinate, adapted to circumstances Positive law is enforced by sanctions. Not all of the natural law is, can or should be so enforced. Slide 17 Fundamental & Derived Laws The natural law consists only of the first principles of practical reason: do what is good, avoid what is evil. The natural law consists only of the first principles of practical reason: do what is good, avoid what is evil. The human legislator must reason from these first principles to derived rules, such as: do not murder, do not slander, etc. The human legislator must reason from these first principles to derived rules, such as: do not murder, do not slander, etc. This derivation is fallible, correctable. This derivation is fallible, correctable. Slide 18 Abstract vs. determinate The natural law, even when derived rules are included, is indeterminate, especially with respect to quantities (speed limits, age qualifications, severity of punishment). The natural law, even when derived rules are included, is indeterminate, especially with respect to quantities (speed limits, age qualifications, severity of punishment). The natural law needs to be supplemented with arbitrary conventions in order to solve various coordination problems (e.g. drive on the right/left). The natural law needs to be supplemented with arbitrary conventions in order to solve various coordination problems (e.g. drive on the right/left). Slide 19 Political Enforcement of the Positive La