Jurisprudence blogging 0: Prologue

Questions of jurisprudence can become quite complicated. When we want to ask whether a particular judge went outside the law in making a decision, (or whether he was right to do so) we need to know what the law is. But in order to know what the law is, we need to know what Law is. In general, I think Hart is more or less correct, though I would not have put things in exactly the same way he did. In order to show why, I will go through Austin, then Hart and then Dworkin. I will try to show why Austin’s view is inadequate in some ways and what is good about it as well. Then, I will try to show why Hart’s view is an improvement. I will also try to show why Dworkin’s development of Hart’s view misses the point and rests on a type of confusion. Finally, I will examine Lon Fuller’s views which while interesting, cannot do the work that they are often put to. The views presented above are basically from positivists and their detractors. However, none of the above really present any natural law viewpoint. Does anyone recommend any texts?

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18 thoughts on “Jurisprudence blogging 0: Prologue

  1. I’d start by look at some of the classical and early Christian thinkers like Cicero and the Stoics, as well as Aquinas and Augustine. Hobbes, of course. Locke, Grotius.

    For modern scholarship, I’m sure that our own Tim Kowal will point you to Tim Sandefur, whom he much admires and who has much of interest to say. I’ll also point you to one of my law school professors also, Lawrence Solum, whose theory isn’t quite natural law but is focused on “virtue” — interestingly, very much in the classical sense of that word.

    And particularly given your own background I submit that you not only need not, but must not, ignore the political philosophy lessons of John Rawls’ Theory of Justice. While perhaps not directly getting at the question of “What is the Law?” if you’re going to wrestle with the idea of an immanent Law and its relationship to the positive law we can readily apprehend, Rawls’ monumental work interposes a lens through which pretty much everyone, even those who disagree with him, views the world.

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  2. Now that I’ve given you a serious response, I’ll indulge in a bit of puckish fun that’s been running through my head since jurisprudential philosophy came up here at LoOG a couple weeks ago. Complete the couplet:

    What is the law? No spill blood.

    Who makes the rules? …

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  3. Mr. Murali:  Busy, hence tardy. On “natural law,”  Alexander Hamilton, Blackstone, the first 150 years of American law and jurisprudence.  Hadley Arkes, and the last “natural lawyer,” one Clarence Thomas.

    Justice Scalia is not “natural law.”  He says that natural law, common law, was as Oliver Wendell Holmes said, a search to touch the “brooding omnipresence in the sky.”  But this ceased with Erie RR v. Tompkins in 1938.  We had built a big enough body of law it became more important to seek a consistency than continually attempting to reinterpret the “brooding omnipresence in the sky.”

    But before life got too complicated, Alexander Hamilton wrote—eerily like Mr. Likko above, in the semi-famous The Farmer Refuted [1775]:

    “…the natural rights of mankind… Apply yourself, without delay, to the study of the law of nature. I would recommend to your perusal, Grotius, Puffendorf, Locke, Montesquieu, and Burlemaqui. I might mention other excellent writers on this subject; but if you attend, diligently, to these, you will not require any others.

    Good and wise men, in all ages…have supposed, that the deity, from the relations, we stand in, to himself and to each other, has constituted an eternal and immutable law, which is, indispensibly, obligatory upon all mankind, prior to any human institution whatever.

    This is what is called the law of nature, “which, being coeval with mankind, and dictated by God himself, is, of course, superior in obligation to any other. It is binding over all the globe, in all countries, and at all times. No human laws are of any validity, if contrary to this; and such of them as are valid, derive all their authority, mediately, or immediately, from this original.” Blackstone.

    Upon this law, depend the natural rights of mankind, the supreme being gave existence to man, together with the means of preserving and beatifying that existence…”

    The rest, as they say, is details.

     

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  4. I am actually writing a paper on which I draw substantially on Hart’s Concept of Law.  It is a thoroughly convincing book, and the obvious product of deep reflection.

    All that being said, I think that there is something problematic with even soft legal positivism, because you are left with the problem of, if law is defined as simply as a system of primary and secondary rules which are valid because they are treated as such (I know this is not quite how Hart expresses it but bear with me), why you ought to obey the law at all.  My own sense is that you are either forced to side with the critical legal theorists and say that law really is nothing more than compulsion and the expression of power, or find an extralegal moral justification for obedience to the system.

    That being said, my own take on Hart is rather fresh, and I am open to alternate views of the matter.

    I also eagerly await your refutation of Dworkin.

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    •  My own sense is that you are either forced to side with the critical legal theorists and say that law really is nothing more than compulsion and the expression of power, or find an extralegal moral justification for obedience to the system.

      This is basically true. It might seem counter-intuitive to americans who have ben fed a steady diet of legal realism, but counterintuitivity is not an indicator of falsity.

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        • Legal realists say that there is more to law than just compulsion and expression of power. Some realist views say that the sovereign discovers law when he makes pronouncements. This is related to another dictum that there can be no such thing as an unjust law.

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          • Does anyone say that that is all law is?  James Hanley points out that legitimacy matters, but that legitimacy is also more or less a game.  if no one holds this, it seems like pretty fertile soil to till…

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  5. Oh, and as far as more contemporary sources of Natural Law go (in case you get tired of Locke and backwards), John Finnis is someone who has been mentioned to me (but whom I have yet to read, so take the recommendation with that caveat).

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