Philosophy of law

NATURAL LAW SYSTEM

Natural law is a legal system where norms are valid only if they are coherent with the natural law, namely, if they're just. So, in a natural law system, a rule that is not a rational standard for conduct is no law at all. According to the natural law's principle of "lex sine rationem non est lex" or "lex iniustanon est lex," a law is valid only if it does not contradict natural law.

Natural law is justice because in nature, everything is just according to the idea that in nature, what happens is justice. The idea of order and rationality is closely connected to laws. So, "KOSMOS↔DIKE" means that the natural world is always just because it is rational. As Aquinas says in the Summa Theologiae, men are the mirror of natural order because they are nature.

Natural law is the voluntas of the Will of God, and this is an irrational idea of the world because you think about an irrational power that governs all of reality. Rationality is one of the characteristics of the natural law.

natural law system, because the only law that merits our obedience is law that meets a certain minimum standard of reasonableness. Connected to the justice, in Natural law system, there’s the principle of morality, according to which the moral standard that govern human behaviour are built in nature. In order to be a law, a norm must be required by morality→ morality has authority. So if morality has authority, and legal norms are necessarily moral, then law has authority too. So the foundation of the natural law system is based on the concepts of morality and justice, and if a norm is just and follows the morality of the natural system, that norm is necessarily also valid. One of the critics that theorists of legal positivism system move, is that the concept that morality is relativistic (change from the community), uncertainty and abstractness → this, causes that the law results not clear. All human law is rooted in the natural law. This does not mean that all human laws aresimply reproduces the contours of natural practical rationality, but that human law are based on the principles of natural law system→ ex.”drive no more than 65 miles per hour” determinated the natural principle “when driving, proceed at a reasonable speed”. According to Finnis, theoretical of the “Weak reading” it is a mistake to look for necessary and sufficient conditions for legality because we ought to proceed to find the central, paradigmatic case of legality→ that because the rule is grounded in a correct understanding of what reasons for action agents have. Weak reading wants to explain that many rules can be deficted, so for that reason we have to go deeper to understand that. (Ex. Of a cheetah that is not fast as the other→ that is not mean that it’s not a cheetah anymore.) LEGAL POSTIVISM: In legal positivism it has been many school of thought that have risen and fallen in the last two centuries (it has a less story than natural law).

In the 18th century, the legal positivism emerged as a new theory in the field of law. It was a response to the natural law theory, which believed that laws should be based on moral principles. Legal positivism, on the other hand, emphasized the separation of law from morality.

The first schools of law were established during this time. In 1753, the first law school was founded at Oxford University. In 1817, Harvard University established the first American school of law. In 1826, University College London also established a law school.

The main characteristic of legal positivism is its separation from morality. As Austin famously said, "Law is a law though we happen to dislike it." The objective of legal positivism is to study law as a science, focusing on how societies regulate their citizens through rules and institutions. It is a disinterested approach that does not consider morality.

Legal positivism is a theory about the nature of law. It is a descriptive or conceptual theory that argues for the avoidance of morality in legal matters. According to this theory, people must simply follow the norms, which should be coherent and comprehensive.

Not necessarily connected with morality. For this absence of morality, after II World War, legal positivism and his advocates, were attacked ensuing on what role German legal positivism (Kelsen) played in the rise of the Nazis.

H.L.A. Hart (defending the legal positivism) argued in 1958 that legal positivism theory is better than natural law theory in encouraging resistance to evil laws and evil regimes. That's because legal positivism knows that validity is one thing, its merit another. Though the natural law system encourages confusion among the population because a rule is moral just because it happens to be treated as valid.

a) Austin: his approach reduces law to a basic picture of a sovereign issuing a command. So, laws have to be understood just like commands of the monarchy. The focus is on the sanction, underlying the prescriptive ability of the law, of those who impose sanctions for disobedience (ought to be).

b) Hart: focused on the social facts and conventions and the use of a hermeneutic approach.

The legal system contained both rules that were directed at citizens ("primary rules") and rules that told officials how to identify, modify or apply the primary rules ("secondary rules").

Kelsen:

Kelsen's work has a certain similarity to Hart's theory. He applied something like a Kantian's Transcendental argument to law. Every normative derives from a more general or more basic normative premise (Basic norm). There's a great similarity between the Kelsen's basic norm and the Hart's rule of recognition.

As we said above, Hart divided the legal system into two categories: the primary and the secondary norms. The rule of recognition is a master meta-rule underlying any legal system that defines the validity of each laws. To say that a rule is valid, that rule have to passed all the tests provided by the rule of recognition.

Both Kelsen's Basic Norm and Hart's rule of recognition rest on the idea of chains of

normativevalidity: a particultar legal norm is only valid because it has been authorized by a more general or more basic legal norm (ex. The Constitution for the Western legal system). Both derive from the assumption that societies' legal regulations occur or are viewed as occurring in a hierarchical structure of justification. a) inclusive (soft) legal positivism: it has been indicated by Hart then legal positivism theory which better reflectig his own views and intentions (after the critiques moved by Dworkin). This theory includes in a part the principle of morality. Differently than the "exclusive legal positvism", inclusive legal positivism thought that morality seems to be sufficient grounds for the legal status of a norm in many common law cases. The more familiar example: if a norm runs afoul of moral standards codified in the costitution, morality is a necessary merit for legal validity (but not sufficient). → the difference with Natural legal system, stays thatsuggested that judges make decisions based on their personal beliefs and values, rather than strictly following legal rules. LEGAL POSITIVISM: a legal theory that argues that the validity of a law is determined by its source, rather than its content or morality. According to legal positivism, a law is valid as long as it is created by a legitimate authority, regardless of whether it is considered moral or just. NATURAL LAW THEORY: a legal theory that posits the existence of a higher, universal moral law that governs human behavior. According to natural law theory, laws that are immoral or unjust are not true laws, and individuals have a moral duty to disobey them. AMERICAN LEGAL REALISM: a legal movement in the United States during the twentieth century that emphasized the importance of empirical observation and analysis in understanding the law. Legal realists believed that judges' decisions were influenced by personal beliefs and societal factors, rather than solely by legal rules. Please note that the formatting above is just an example and you can use any HTML tags you prefer to format the text.

1. One argument is that the law was "determinate"; for two reasons:
   1. Law is rationally indeterminate in the sense that the available class of legal reasons did not justify a unique decision.
   2. Law was also causally indeterminate in the sense that legal reasons did not suffice to explain why judges decided as they did.
   "The core claim" of Realism: in deciding, judges respond primarily to the stimulus of the facts of the case, rather than to legal rules and reasons.
2. But how judges respond to the underlying facts of the case as they do? A claim is that what determinates judges' response to the facts of a particular case are idiosyncratic facts about the psychology or personality of that individual judge → influenced by Freud's idea that the key to personality lay in the buried depths of the unconscious. This makes really unpredictable the decision of judges. So American legal realism is based on the indeterminacy thesis, namely, the idea that judges' decisions are not determined by legal rules and reasons alone.

Decisions are not entirely based on rules but on individual pre-conceptions that are determined by social factors. Therefore, the American legal realism is a naturalized jurisprudence according to which it is an essentially descriptive theory of the causal connections between situation-types and actual judicial decisions.

How ought courts to decide cases? The Realists do not speak univocally on this score:

1. Some Realists think that judges should simply adopt openly a legislative role (just use the norms in the judicial system), because the law is indeterminate, courts must necessarily make judgments on matters of social and economic policy.
2. It's pointless to give normative advice to judges, since how judges decide cases. That is a brute fact about human psychology: "no human being in his normal thinking process arrives at decisions by the route of any...syllogistic reasoning".
3. There's also a skeptical account. According to this rule-skeptic, rules previously

Enacted by legislatures or articulated by courts are not law because law is just a prediction of what courts will do or whatever a court says during the process. Hart refuses the Conceptual Rule-Skepticism as a modified version of what he thinks. Hart argues that it's impossible for a judge to decide the law on his own. (Ex. A judge describes a law just like: "law is what I think I will do". But there are courts delegated of power (as Constitutional Court).). So the main difference is that Hart puts the indeterminacy of the law at the margin in his account; while the Realists encompass the core.

ECONOMIC RATIONALITY IN THE ANALYSIS OF LEGAL RULES:

In the first part of the twentieth century, lawyers and legal academies referred to economic concepts and theories only to elucidate areas of laws such as antitrust, public utilities, and taxation.

The economic analysis of law includes:

• Explanation of how a legal rule or an institution influences individual behavior
• Explanation of

Why particular rules arose or persist preference: in microeconomic theory is a technique.