Philosophy of law - final
Manel Domingo Bonnin Philosophy of Law December 2019
Philosophy of law is a
branch of philosophy and jurisprudence which studies basic questions about law and legal systems,
such as “what is
law?”, “what are the criteria for
legal validity?”, “what is the relationship between law and morality?”, and many other similar questions.
Philosophy of law (or
legal philosophy) is concerned with providing a general philosophical analysis of
law and legal institutions.
Issues in the field range from abstract conceptual questions about the nature of law and legal
systems to normative
questions about the relationship between law and morality and
the justification
for various legal institutions.
There are mainly two
philosophical methods of law interpretation: the positivistic and the naturalistic.
Legal positivism is
a school of thought of philosophy of law and jurisprudence which states that the law is the command of
the sovereign backed by the threat of punishment.
On the other hand, according to Natural Law,
the law depends not simply on the fact that it has been laid down in a legal
text, but also on some more additionalfactors externalfrom law.
Philosophy is divided
in several branches. Three of them which can be related to the legal studies
are epistemology,
ontology
and axiology.
Epistemology is
the branch of philosophy that studies the theory of knowledge. using both
the object and the subject that will
access knowledge. as well as
the limits of
knowledge
itself.
Legal epistemology examines
the factors that determine the origin of the law. and has as
one of its objectives try to define its purpose. Epistemology
of law leads to the understanding of the different ways of understanding the concept of the Law.
The ontology is a
branch of philosophy that studies the nature of being. existence and reality, trying to
determine the fundamental categories and relationships of existence.
It encompasses some
abstract questions such as the existence or not of certain entities. what can
be said to exist and what does not. what is the meaning of being. etc.
The legal ontology is
that branch of the philosophy of law that aims to study the being of law. Try to study:
• In
what part of reality can we find the Law?
• What
part of social reality is part of what is called Law?
• How
to distinguish laws. in a legal sense. from natural physical laws and from laws
or social norms that are not legal?
Axiology is a branch of philosophy.
which aims to study
the nature or essence of the values and value judgments that an individual
can make.
Legal axiology is
the study of legal
values in the creation and application of legal norms. It is one of the objects of study of the
Philosophy of Law.
The different
considerations that can be made around values determine the drafting, approval,
application or repeal of legal norms. An example is the study of the value of
life and dignity in relation to other values such as justice, responsibility
and freedom on issues related to the death penalty or life imprisonment.
There are roughly
three categories into which the topics of legal philosophy fall: analytic jurisprudence,
normative jurisprudence
and critical theories of
law.
Analytic jurisprudence involves
providing an analysis
of the essence of law. The
principal objective of analytic jurisprudence is to provide an account of what distinguishes a legal
system of norms from others systems of norms, such as ethical
norms. Accordingly, analytic jurisprudence is concerned with providing
necessary and sufficient conditions for the existence of law that distinguish law from
non-law.
Normative
jurisprudence involves the examination of normative,
evaluative, and prescriptive issues about the law. The three key issues:
•
when and how laws can restrict the freedom of
citizens,
•
the nature of one’s obligation to obey the law
and
•
the justification of punishment by law
Finally, critical theories of law,
such as legal realism,
critical legal studies and feminist jurisprudence, challenge more
traditional forms of legal philosophy.
Conceptual theories of
law can be divided into two main headings: (a) those that affirm there is a conceptual relation
between law and morality (natural law theories) and (b) those that deny that there
is such a relation (legal positivism).
Auguste Comte was a French writer and
philosopher who formulated
the doctrine of positivism.
According to him, the characteristics
of positivism are:
1.
Science is the only valid knowledge.
2.
Fact is the object of knowledge.
3.
Philosophy does not possess a method different from science.
4.
The task of philosophy is to find the general principles
common to all sciences and to use these principles as guides to human conduct and as
the basis of social organization.
5.
Positivism denies intuition and theological and metaphysical knowledge
to prior reasoning.
Comte used positivism as a weapon against
the negative philosophy prevalent before the French Revolution, which was more
concerned with emotional than practical questions. Comte regarded such
speculations as negative, since it was neither constructive nor practical. As
an alternative,
Comte invented
‘positivism’ which remains concerned with the questions about how things are in
reality.
Legal positivism is a
school of thought of philosophy of law and jurisprudence, largely developed by
eighteenth and nineteenth-century legal thinkers such as Jeremy Bentham and
John Austin. Both held that the LAW IS THE COMMAND OF
THE SOVEREIGN RACKED RY THE THREAT OF PUNISHMENT.
Jeremy Bentham made a sharp distinction between
people he called:
- Expositors: those who explained
what the law in practice was; and
- Censors: those who criticized
the law in practice and
compared it to their notions of
what it ought to be.
The philosophy of law, considered strictly, was to explain the real laws of the expositors,
rather than the criticisms of the censors.
John Austin was greatly influenced in his philosophy
by Jeremy Bentham. He held that the distinguishing feature of a legal system is the
existence of a sovereign whose authority is recognized by most members of a society, the authority of which is enforced by the use of sanctions, but which is not bound by any human superior. The criterion for validity of a legal rule in such
a society is that it has
the warrant of the sovereign and will be enforced by the sovereign power and
its agents.
The three basic tenets
of Austin’s positivism are:
- Laws are commands issued by the
uncommanded commander (the sovereign)
-
Such commands are enforced by sanctions
- A sovereign is one who is obeyed by the
majority
Austin considered the
law as commands from
a sovereign that are enforced by threat of sanction. In determining ’a sovereign’, Austin recognized it
is one whom society
obeys habitually. This sovereign
can be a single
person or
a collective sovereign
such as Parliament. Austin’s theory is also somewhat brief in his explanations
of Constitutions, International Law, non-sanctioned rules, or law that gives
rights. Insofar as non-sanctioned rules and laws that allow persons to do
things, such as contract law, Austin said that failure to obey the rules does
result in sanctions; however, such sanctions are in the form of “the sanction
of nullity”.
In the twentieth
century, two positivists had a profound influence on the philosophy of law. On the continent, Hans Kelsen was the most influential, where his notion of
a Grundnorm or a
“presupposed” ultimate and basic legal norm, still retains some influence. In
the Anglophone world, the pivotal writer was H.L.A. Hart, who argued that the law
should be understood as a system of social rules.
Kelsen is considered a very strict and
scientifically understood type of legal positivism. It is based on the idea of
a Grundnorm.
a hypothetical norm on which all subsequent levels of a legal system are based,
including the constitution. For Kelsen, “Sovereignty” was a loaded concept: “We
can derive from the concept of sovereignty nothing else other than what we have
purposely put into its definition”.
His theory has disciples among scholars of
public law worldwide. His disciples developed “schools” of thought to extend
his theories, such as the Vienna School in Austria and the Brno School in
Czechoslovakia.
H.L.A. Hart was influenced by Kelsen,
though he differed from Kelsen’s theories in several respects. Hart
rejected Kelsen’s views that sanctions were essential to law and that a
normative social phenomenon, like law, can not be grounded in non-normative
social facts.
According to Hart, law
is essentially a system of primary social rules that guide the
conduct of law's subjects, and secondary rules that regulate how
the primary rules may be changed, how disputes about
them are to be adjudicated and, especially, how the primary rules are to be
identified. Hart specifically enumerates three secondary rules; they are:
- The Rule of Recognition,
the rule by which any member of society may check to discover what the primary
rules of the society are.
- The Rule of Change,
the rule by which existing primary rules might be created, altered or deleted.
- The Rule of Adjudication,
the rule by which the society might determine when a rule has been violated and
prescribe a remedy.
In contemporary legal
positivism the much recent discussion has been on an internal debate between “inclusive legal positivism’’
(also called “soft’’ or “incorporationist’’) and “exclusive legal positivism’’ (also known
as “hard’’).
The debate between the
two camps involves a difference in interpreting or elaborating one central
point of legal positivism: that there is no necessary or “conceptual’’
connection between
law and morality.
According to inclusive positivism, it is possible for
a society’s rule of recognition to incorporate moral constraints on the content
of law. It accepts
the possibility (but not the necessity) of taking moralfactors into account.
In contrast, exclusive positivism insists
in the separation thesis all the times and denies that a legal system can incorporate moral
constraints
on legal validity.
Legal realism is
a positivistic
theory that
held that the law
should be understood determined by the actual practices of courts, law offices,
and police stations, rather than
as the rules and doctrines set forth in statutes or learned treatises. It had
some affinities with the sociology of law.
While not entirely rejecting the idea that judges can
be constrained by rules, the realists maintained that judges create new law
through the exercise of lawmaking discretion considerably more often than is commonly
supposed. On their view, judicial decision is guided far more frequently by
political and moral intuitions about the facts of the case (instead of by legal
rules) than other theories acknowledge.
Legal realism can roughly be characterized by the
following claims:
1. The class of available
legal materials are insufficient in order to logically entail a
unique legal outcome in most cases worth
litigating at the appellate level.
2. Judges
make new law in deciding legal
disputes through the exercise of a lawmaking discretion.
3. Judicial
decisions in indeterminate cases are influenced by the judge’s political and
moral convictions,
not by legal considerations.
It is difficult to
summarize positivist thinking, but it is generally accepted that the central
claim of legal positivism is the following: “In any legal system, whether a
given norm is legally valid, and hence whether it forms part of the law of that
system, depends on its sources, not its merits”.
Relate concept of
epistemology with the theory of Natural Law.
Relate ontology to the
Natural Law Theory. Explain what is the existence in the natural law
(metaphysical, theological and moral) and in positive law (law as what is
stated in legal documents).
As Natural Law accepts
external fonts in the law, the values will be defined and so protected
according to the point of view taken into consideration: different religions,
different morals...
When we study and try
to define concepts into the natural law, it is important to understand which
kind of natural law are we talking about;
If we take into consideration classical
Roman/Greek thinkers or current thinkers we will see that the main point of
equity in justice is the fairness, the idea of justice and the idea of Good.
On the other hand, if
we look into middle ages thinkers such as Thomas de Aquino we will see that the
importance is not given to the metaphysical concept of good or fairness rather
than to the theological idea of it.
That is why a greek or
current thinker will define fairness relating to what law should be or relating
to the idea of equity, and a theological thinker of natural law will define it
relating to religious concepts and ideas.
Finally, it is
important to highlight one thing common to all iusnaturalistic theories: the
natural part of the law is applied over positive law in order to delete the
unfairness and the corrupted concepts into which that the man-made laws are
susceptible to fall into.
According to Dworkin the
law has to be understood not just as a set of rules, but
also should be included the legal principles, legal strategies and legal policies. To Dworkin, Law is a system that includes all of those standards that
judges are required to apply.
- Legal principles are
standards that its will is to endure justice and fairness.
- Legal strategies are
standards that guide the legal actions.
- Legal policies are
standards which set goals that society has to achieve.
Dworkin’s law theory is “interpretive”; this means that the
law is whatever follows from a constructive interpretation of the
legal system.
Historically, one of
the most influential natural law jurists was St. Thomas of Aquinas whose teachings
form the basis of the Roman Catholic natural law traditions. Aquinas integrates the rationalist
and religious approaches to Natural Law.
Aquinas divided law into four main categories:
- Eternal Law: Such
law constitutes God’s rational guidance of all created things and is derived
from the divine
wisdom and
based on a divine plan. Man can never understand eternal law in its entirety
but shall be guided by it as he moves through life.
- Divine Law: Eternal law which
manifests itself in the Christian scriptures. Such law,
according to Aquinas, was necessary as humans require require guidance on how
to perform proper acts.
-
Natural Law: it refers to normative properties that are inherent by
virtue of human nature and universally cognizable through human reason.
-
Human Law: Is derived a combination of both the Divine and Natural Laws and
must be directed toward the common good. Such law can vary in accordance with
time but its essence must be just, as an unjust law is not law (lex injusta non est lex).
Natural law doctrines faced further decline throughout
the 18th century and into the 19th century where emphasis was placed on the notions of State power and
State coercion. This era also
saw a rise in the
positivists approach to jurisprudential theories which were
promoted by Jeremy Bentham and John Austin. Such jurists sought to separate the
notions of what law is as opposed to what the law ought to be.
The 20th century saw a rebirth of Natural Law approaches
to the study of law. To the forefront was the notion that there must be a higher set
of principles which must satisfy natural law theories if law was
to be regarded as valid. This revival was the result of a number of historical
occurrences: Nazism, the development of nuclear weapons and other weapons of
mass destruction, the general decline of social and economic stability
worldwide...
Radbruch finds
out that law, as a cultural concept, “is the reality the meaning of which is to
serve the legal value, the idea of law.” He argues that the idea of law may
only be Justice. Here he is appealing to an objective idea of distributive
justice. This Justice appeals to an ideal social order that directs the
relationships between moral beings.
The essence of Justice
is equality; thus, Radbruch asserts “[Justice] is essential to the legal
precept in its meaning to be directed toward equality.” The objective of legal
philosophy is to evaluate the law in terms of congruency with its only goal is
“to realize the idea of law”.
Professor John Finnis is
a contemporary defender of natural law and a supporter of its resurgence in the
last century. Finnis is a strong supporter of a “neo-Aquinian” natural law philosophy
which does not presuppose a divine being. Instead of making reference to the ‘form’ of good
or seeking good, as was proposed by historical jurists he speaks of mans desire
to pursue basic ‘goods’ in life. Finnis focuses on several goods rather than a single good.
This theory is based on the supposition
that mankind sets
out to obtain things they perceive to be good for themselves. Finnis isolates eight of these goods which,
according to him, cannot be broken down any more and so refers to them as
‘basic goods’ in life. These are, he says, fundamental and do not derive from
other goods. (Life,
knowledge, play, aesthetic, experience, friendship, religion and marriage)
Libertarian theories of law
are
built upon classical liberal and individualist doctrines.
The defining
characteristics of libertarian legal theory are its insistence that the amount of governmental
intervention should be kept to a minimum and the primary
functions of law should be enforcement of contracts and keep social order, though social order
is often seen as a desirable side effect of a free market rather than a
philosophical necessity.
Into the legal
positivism, the starting point is the reduction of the object of Legal Science
to the knowledge of
the set of rules that affect current or positive law.
Connecting this concept
to the human rights we can assume that the legal human rights, and so the ones
which shall have legal protection are those which can be found protected by a given legal system.
We have as the best
example the Fundamental
rights, a set of norms that protect the essential individual
rights that are usually found on the Constitution.
Although Plato did not have an explicit theory of
natural law, his concept of nature contains some of the elements found in many
natural law theories. According to Plato, we live in an orderly universe. The
basis of this orderly universe or nature are the forms, most fundamentally the
Form of the Good, which Plato describes as "the brightest region of
Being”. The Form of the Good is the cause of all things, and when it is seen it
leads a person to act wisely.
Socrates and his
philosophic heirs, Plato and Aristotle, posited the existence of natural justice or
natural right. Of these, Aristotle is often said to be the father of natural
law.
Aristotle emphasized
the distinction between “nature” on the one hand and “law” on the other. What
the law commanded would be expected to vary from place to place, but what was
“by nature” should be the same everywhere.
Cicero wrote
in his De Legibus that both
justice and law originate from what nature has given to humanity, from what the
human mind embraces, from the function of humanity, and from what serves to
unite humanity.
For Cicero, natural
law obliges us to contribute to the general good of the larger
society. The purpose of positive
laws is to provide for “the safety of citizens, the preservation
of states, and the tranquility and happiness of human life.”
In this view, “wicked
and unjust statutes” are “anything but ‘laws’” (injusta lex non lex est), because in the very definition of the term ‘law’
inheres the idea and principle of choosing what is just and true. Law, for
Cicero, ought to be a “reformer of vice and an incentive to virtue.”
Historically, one of
the most influential natural law jurists was St. Thomas of Aquinas whose teachings
form the basis of the Roman Catholic natural law traditions. Aquinas integrates the rationalist
and religious approaches to Natural Law.
Aquino divides law into 4 kinds: Eternal, Divine, Natural and Human.
To him human law must
be fair, as it participates from the law of God. If the human law is unfair it
means that it does not really follows the will of God and, in fact, is a
corruption of law. (Lex injusta non lex est)
Radbruch finds
out that law, as a cultural concept, “is the reality the meaning of which is to
serve the legal value, the idea of law.” He argues that the idea of law may
only be Justice. Here he is appealing to an objective idea of distributive
justice. This Justice appeals to an ideal social order that directs the relationships
between moral beings.
Professor John Finnis is
a contemporary defender of natural law and a supporter of its resurgence in the
last century. Finnis is a strong supporter of a “neo-Aquinian” natural law philosophy
which does not presuppose a divine being. Instead of making reference to the ‘form’ of good
or seeking good, as was proposed by historical jurists he speaks of mans desire
to pursue basic ‘goods’ in life. Finnis focuses on several goods rather than a single good.
According to the
Czech-French international official and university professor Karel Vasak,
we can classify the human rights in three generations, taking into
consideration two aspects: when they started to be protected and its contents.
1.
Civil and political rights: This kind of
rights are essentially about freedom and participation in political life.
They are fundamentally civil and political, and serve to protect the individual
from the excesses of the State.
First generation rights include freedom of expression, the right to a fair
trial, freedom of religion, and suffrage.
2.
Economic, social and cultural rights:
The human rights of the second generation are related to equity and began to
be recognized by governments after the First World War. They are fundamentally social, economic and
cultural in nature. They assure
the different members of citizenship equal conditions and treatment. They
include the right to be employed, the rights to housing, education and health,
as well as social security and unemployment benefits.
3. Collective or solidarity rights: The third generation
of rights, which emerged in the twentieth century, is linked to solidarity. They are unified by their impact on
everyone's life, on a universal scale, so they need a series of efforts and
cooperation at a planetary level. It usually includes heterogeneous rights such
as the right to peace and to the quality of life.
Georg Jellinek was
a German jurist and professor from Austrian origin who developed another way to
divide the fundamental rights in a given legal system: the classification
include three natures of rights: status negativus, status activus and status positivus.
1.
Status negativus is a law that delineate the scope of
free activity, which does not
have the right to interfere neither private individuals nor the state. For
example, this category includes:
-
The right to respect for dignity
-
The right to personal freedom and inviolability
-
Secret of communications
-
Freedom of conscience and religion
2. Status activus form
of the right to participate
in the formation and exercise of state power and local self-government,
to participate in public life, both individually and in Association with
others:
-
Freedom of expression and belief
-
Freedom of information and mass media
-
The right of citizens to hold public events,
freedom of Assembly and demonstrations
-
Electoral rights of citizens
3. Status positivus form
of the right to
state protection of the legal freedom (police and judiciary), law
on state power providing security. These rights can be considered as a
guarantee of the rights and freedoms mentioned above. These include
-
The right to protection from crimes
-
The right to state power to ensure compensation
of damage caused by an offense.
-
The right to provide access to justice; the
right of a person to the decision of the court the lawfulness of his detention (habeas corpus)
-
Basic procedural rights; the right to a fair
trial, to an impartial Tribunal; right to review of sentence by a higher court;
the right to qualified legal assistance
When talking about
international protection of human rights we must make a difference between
universal and regional systems of protection.
In the sphere of universal protection of human
rights, we find the maximum exponent in the United Nations.
The United Nations is
the only multilateral governmental agency with universally accepted international jurisdiction for
universal human rights legislation.
It has numerous committees with responsibilities for safeguarding different
human rights treaties. The most senior body of the United Nations with regard
to human rights is the Office
of the High Commissioner for Human Rights.
Its role is to prevent human rights
violations and secure respect for human rights by promoting
international cooperation and coordinating the United Nations’ human rights
activities.
The Universal Declaration of
Human Rights (UDHR) is a historic document that was adopted by
the United Nations General Assembly in 1948.
The Declaration
consists of 30
articles affirming an individual's rights which,
although not legally binding in themselves, have been elaborated in subsequent
international treaties, economic transfers, regional human rights instruments,
national constitutions, and other laws.
In the regional field of international
protection of human rights we can find the European Court of
Human Rights.
The European Court of Human
Rights (ECHR; also called the Strasbourg Court and the European
Court of Human Rights) is the highest judicial authority for the guarantee of
human rights and fundamental freedoms throughout Europe.
It is an international tribunal before which
any person who considers to have been a victim of a violation of their rights
recognized by the European
Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR)
or any of its additional Protocols, while he was legally under the jurisdiction of
a member State of the EU or of the Council of Europe, and that has successfully exhausted the judicial
remedies available in that State,
may file a complaint against that State for violation of the Convention.
In the national sphere, the systems variate as
much as different legal systems are in the world. In Spain, for example, we can
find the Human Rights
protected in the
Constitution as Fundamental Rights.
As this individual
basic rights are found in the Constitution. this means that they are constitutional rights. which implies that they will be given Constitutional protection. Spain has a continental law legal system. which
means it follows the Kelsenian
system of constitutional protection: through the institution of a
Constitutional Court.
This means that if this basic rights are
violated. one can appeal to this court thanks to the known as the “amparo appeal’.
