Philosophy of law

PHILOSOPHY OF LAW

INTRODUCTION:

While science can be considered as something objective we know that philosophy is

different. It is based on speculations about basic concepts made with many different

points of view. Philosophy doesn’t give a single and well defined answer to a

question but rather many different answers, all rationally explained (especially in

Western philosophy, that use rational thinking much more than other philosophies,

thanks to the link between science and philosophy in Western countries). Jurists

must not be considered as technicians because during this course we will find that

there always are various alternatives that can be analysed from different points of

view, all sustained by rational arguments, of course.

What are the main tasks of legal philosophy?

● Legal philosophy mainly deals with three different questions:

1. How can law be just? (the concept of justice)

2. How can law be valid in force? (the concept of validity)

3. How can law be effective, really applied or followed? (the concept of

effectiveness)

While a law can be valid if is empowered, applied and followed, it still may not be just

• Main concepts of legal philosophy

There are three main concepts in legal philosophy that are also linked with its main

tasks: JUSTICE: amounts to its being coherent with a set of moral values

a. EFFECTIVENESS: amount to its being in fact applied or followed, it also is an

b. ideal concept, since it doesn’t rely on sheer force.

VALIDITY : validity amounts to its being in force ad obligatory as such, in this

c. way it is opposite to effectiveness, since validity is a very practical concept.

Sometimes these concepts can merge together, for example when we say that a law

is respected when is applied (e.g. If you smoke indoors in a public building, you get a

fine). But in this case a formalist will say that even if the sanction won’t follow, we still

are obliged to respect that law. This is what happens when a state is not able to

always enforce rules but its citizens still follow them. The principle of justice may

sometimes not be useful for the validity of a law.

MAIN THEORIES OF LEGAL PHILOSOPHY

Natural law theory: It considers a norm valid if its coherent with the Natural

A. law, i.e. is just, and thus can be considered obligatory for everyone. Here

validity comes from justice.

Legal positivism: It considers a norm valid if it belongs to a positive legal

B. system, e.g. a nation, and so the norm can be obligatory only if it is part of said

legal system. This theory stresses the importance of authority since it relies on

a chain of empowerment. Still this theory doesn’t rely on the use of a police

force since it is enough for a law to be written in a code in order to be

respected. Here validity comes from the system.

Legal realism: It considers a norm valid if the rule is applied or followed in fact,

C. that is if a community feels it as binding and it actually is so (with, for example,

sanctions or jail). Here validity comes from effectiveness.

NATURAL LAW THEORY IN DETAILS

Comes from the classical/mediaeval conception of nature, where philosophers tried

to explain phenomena without having the knowledge to really understand them

(e.g. you are sick since God wanted to punish you for your sins).

In this theory the concepts of mussen (what cannot but be in that way, what is

necessary) and of sollen (what ought to be, typical of the human world, due to the

idea of the free will of human beings) come together and become one. It has its roots

in the pre-Socratics philosophers, who stated that what happens is a consequence of

a natural order (kosmos is subject to dike).

In this way everything must follow the laws of nature, that are independent to

authority since is God himself that gave them to us. In this way nature and its

phenomena could be explained through a theological framework. It is based on idea

that if something happens, there must be a reason behind it and so it must be just.

The pre-Socratics philosophers stated that natural order was understandable

because something or someone gave it principles. They were looking for the arké,

the principle, even if it can also be translated as dominion and power. Their quest

was the investigation of the origin of the world carried by studying its phenomena,

i.e. its power, its authority (this is the link with the concept of arké).

So, at least for pre-socratics, the concept of kosmos (the natural order) collapse with

the idea of dike (justice) because if something happens and it cannot but happen in

that way then it is just, since it is natural. In this way the idea of law becomes

connected with the idea of nature and the axioms of law are to be found in nature.

For them a good jurist must learn from nature in order to know how to make a law

that is also just. This theory can be considered as a moral theory (it states that the

moral standards that must guide human behaviour are objective and come from

nature) and a legal theory (where legal rules must derive on considerations about

the natural law moral theory and derive from the natural world, at least in part).

MAIN VARIANTS OF NATURAL LAW THEORY

In the Western world there are three main variants regarding natural law theory:

• Voluntaristic natural law theory: can roughly be translated simply as “God’s

will”, in this conception a supreme creature behind nature states what is right and

what is wrong and men must accept it as it is. It was widely spread among the

populations of ancient Greece and of Europe during the Middle Ages.

• Rationalistic natural law theory: it is based on the act of thinking and is

probably the most influent

and important theory among those three. The power of reason here is clear, since it is

behind what is right and what is wrong. Justice is then rational and comes from the

observation of nature

• Naturalistic natural law theory: here nature is observed in a narrow biological

sense, and that can

justify the prevailing of strong individuals on weaker humans, since that is what

happens in nature where weak animals risk to be killed by predators.

MAIN CURRENTS OF THE NATURAL LAW THEORY

Pre-socratics: kosmos and dike collapse.

1. Stoicism: human beings are rational, the world is rational, then the man can

2. understand everything.

Christian thinking: the struggle between God’s will and human reason.

3.

4. The Enlightment.

5. Liberalism and democracy.

Even if at the end of the 18th century there will be the codification and the passage

to legal positivism we must acknowledge that these theories have been discussed

for more than two thousand years and that the modern concept of justice where law

must be created by knowing that there are rights that belong to every human being

mainly comes from these ancient theories.

STOICISM

They have their own version of kosmos, which is logos, i.e. “reason” and “meaning”. By

saying that the world is based on logos they imply that the world is meaningful,

rational and understandable. The world is also divine since God is the natural world,

and that means that if God is rational and the nature is God, then nature must be

rational (pantheistic view of nature).

In this way we can fully understand the world thanks to the use of rationality (this is

what Cicero called lex aeterna). Humans beings are also divine, because thanks to

their use of reason they mirror God. Justice is considered part of the world and this

compels it to be rational and human beings can understand it through the use of

rationality.

Justice is then the fruit of a rational thinking so we can argue about it, while, if it

simply was God’s will then we couldn’t understand it and so it couldn’t be subject to

speculations. Stoicism’s main contribution to Western philosophy is the fundamental

idea that human beings can understand justice and this conception will never

abandon our culture.

This theory states that human behaviour is objective and can thus be analysed with a

scientific method. In the stoic theory of the world human beings are peculiar since

they are subject to the rational world, but they are also capable to understand it

because of their rationality. If we accept this theory we must also acknowledge that

justice is settled once and for all and cannot change due to its being written in the

same essence of the world.

The fact that justice is seen as rational also makes it immune to any attack that we

can carry on using the existence of many different cultures in the world since they

can be seen as wrong or not able to interpret the law of the natural world in a correct

way. If we want to carry on one of the most effective attacks that can be carried to

the stoic’s conception we should focus on a direct attack to the same idea of

rationality because in that way we focus our effort in trying to destroy the

fundamentals of the stoicism. Today’s society is much more different from the stoic’s

one but the idea that the world is rational and understandable through the use of

the mind will influence the whole Western culture for millennia and still is

widespread nowadays in Europe and North America.

THE ARRIVAL OF CHRISTIANITY

During the Middle Ages the Christian conception became dominant and will

successfully try to go over the stoic conception. Of course for them God was the ruler

of the world and also we can or cannot drop the stoic idea that everything in the

world is also divine and rational, due to its being created by God himself. Saint

Augustine at first stated that justice is rationality but then he will become a

voluntarist and said that you should just believe in God and have faith since justice is

understandable not through the use of reason but through the use of emotion, since

it is simply God’s will.

William of Occam added that God could make the just unjust and vice versa if he

wanted it, thanks to his supreme power, and thus bringing to the extreme the

voluntarism. The Christian faith doesn’t care if the world is rational or not because the

main concept at the basis of this faith is that human beings are imperfect and can

no longer mirror the divine nature of God. This also give meaning to the sacrifice of

Jesus Christ since his death was a sacrifice made in order to teach people about the

rules to respect in order to be saved. This theory at first saw the stoicism as a

heretical theory and by doing so influenced the transmission and conception of

culture until the 13th century.

THOMAS AQUINAS

He was able to make a synthesis between the stoicism and the Christian faith. He

stated that there are four kinds of law, here presented from the most important to

the least important:

1. Lex divina: it is the will of God, it is what we must do in order to be good

Christians and gain salvation, in this way he isolates what a good Christian must do

from the concept of human justice.

2. Lex aeterna: it is God’s reason, the way the world goes and can be seen as the

logos of the stoic conception.

3. Lex naturalis:it is the part of God’s reason that human beings can understand,

it is a small part of the lex aeterna.

4. Lex humana: it is coherent with lex naturalis and is to be seen as human

justice.

Thanks to him we were again able to be rationalistic and coherent with ancient

classical conception in a very irrationalistic framework. How we can go to Heaven is

God’s will and so Christ taught us how to go there but this is a matter of religion,

while the way the world goes is a matter of God’s eternal reasoning and a very little

part of it can be understood through human reason since it human are still part of

God, even if they are imperfect, and this makes them able to reason about justice. His

conception is deeply influenced by the stoic one (lex aeterna is the logos, lex naturalis

is the idea that human beings are part of the logos that rules the world, lex humana

is the idea that human beings can understand the logos).

If we simply drop the will of God and God’s reason from this scheme we will simply

obtain the stoic conception. In the 1st period of Christian faith theologians had to

choose between reason and faith, thus giving the latter more importance, but due to

Thomas Aquinas’s theory they finally managed to merge the two conceptions. In this

way a law must be rational in order to be so and finally it became once more a

matter for judges and no longer for priests.

This makes politics and laws a part of God’s reason that can be rationally understood.

Justice is embodied in nature and the validity of law depends on justice.

Thomas Aquinas refrained the stoic ideas upon law, since Christian religion is

revealed to humans, since they cannot understand everything on their own. Their

problem was accounting for justice within the Christian Theology’s framework,

Aquinas with his lex aeterna managed to separate law from faith, that is covered

from lex divina, the world is rational because God made it so, even if we cannot

understand everything of lex divina, in fact only lex naturalis can be understood by

human beings, smaller than God but made of his same material, reason. Aquinas

used a rational theology to talk about law, lex humana is positive law, made by

humans and coherent with natural law, i.e. with justice. He adopted a rationalistic

view about justice.

An order is to be found in the universe, the fist principle is the non-contradiction

principle, since you can’t affirm and deny the same thing at the same time and this

was seen as a principle where reality is built around (something can be or not be but

cannot be the two things at the same time). Humans reason about what things are

(theoretical reason) and about how they should act (practical reason). The principle

of non-contradiction is about theoretical reason.

Practical reason is based on the concept of goodness, Aquinas states that good is the

first thing that happens in practical reason (what is good for me: should I take the

umbrella if it’s rainy? Of course, because it’s good for me). When we reason about

how to act we reason about good and evil, for me and the others.

The first basic principal of practical reason is that good is what all things seek. In this

way the first principle of law must be: “good must be done and evil avoided”, this can

be seen as a principle of non-contradiction in the practical reason and is at the basis

of every action in the human world. We still haven’t stated what is good and what is

evil, we can know them through the principles of natural law, so what we naturally

conceive as good is good and the same happens for what is evil.

Humans are henceforth naturally incline to behave in a good way because nature

taught them to act like that and they have a natural inclination towards it (like the

need for procreation, the preservation of life, the education of the offspring). Only the

mankind has an inclination towards what is good, towards knowledge, be it of the

world around him or about God, and finally towards cooperation, since humans are

social creatures. These are the basic principles of natural law and thus of justice.

For Aquinas law is an order direct from reason. Law has threes requirements to meet

in this way: it must hold for everyone, so it must be built with the common good in

mind; legal authority depends on the fact that those who have it must care for the

community; everyone should be able to know it, so the law must be promulgated

and made public.

He has derived the principles of justice from nature simply by a process of deduction

and arguing about them, building an argumentative chain. Good is an end for

humans and so natural law has to do to the ends (we can see them as the natural

inclinations) of human beings.

Human’s ends are the principles at the basis of natural law and a law, in order to be

legitimate, must respect those principles (look on the website for further information

and schemes to help you to study this lesson).

In this idea of a legal system of course some laws will not be covered by the

principles stated in the natural law (like, for example, the laws about taxation) but

Aquinas stated that laws does not have to merely mirror those principles but must

only not contradict them.

Since humans are rational and justice is rational they will be able to understand it

and plan their laws accordingly. In his arguments about law God is not included and

this makes this theory similar to the stoic’s one, because their theory also could

exclude the presence of the divine.

CONTRACTUALISM

This theory develops in mainly between the 16th and 17th centuries and owes a lot to

Thomas Aquinas theories. It deals with a very specific question: “Why should we obey

the law?”. Its main exponents are John Locke and Thomas Hobbes. For them the law

is to be considered as the outcome of a pact between individuals.

THOMAS HOBBES (1588-1679)

A faithful supporter of the absolute monarchy. He theorized for first the so-called

state of nature, a place where law does not yet exist. For him human beings are

similar to a physical and rational level (of course there are some differences but are

mostly irrelevant on a bigger scale) and in this way no one can really prevail once and

for all on everyone else. This creates a state of constant war between various

individuals endowed with rationality.

In this state there is not a central power that can impose a law upon the individuals

and without a law there cannot be justice. But here we have something similar to

the law, it is the natural law, something that human beings can understand through

the use of reasoning about consequences when they are performing an action. This

natural law is similar to Aquinas’ value of life but it becomes a right (Hobbes was the

first to introduce the concept of human rights in legal philosophy), because, as he

noticed, humans always try to survive.

In order to survive they gain access to another right the one that give them the

permission to do

everything they can to ensure their survival. These two rights are called subjective

rights since they refer to the individual and not to the community. In this situation of

constant war humans will eventually understand through their use of rationality th