Philosophy of Law - part 1
[Music]
people wonder where law comes from in an
obvious sense law comes from lawmakers
it could be a king or in a modern
context legislative bodies like the US
Congress or the various state
legislatures or the City Council but if
we dig deeper we can see that there are
several possible sources for the laws
authority so there's natural law theory
on this view there are principles of
right and wrong that are part of the
nature of the universe as much as laws
of math or logic or physics most natural
law theorists argue that God's law is
the fundamental underwriting theory of
justification for man-made laws there's
also a secular natural law tradition in
either case the main idea is that
legislators are trying to figure out
what right and wrong really are and what
principles we should live by to be a
valid law on this view is to conform
with the natural law an unjust law then
isn't really a law one example would be
in the Declaration of Independence they
declared their rebellion against the
royal authorities on the grounds that it
was no longer morally binding on them
similarly in the civil rights movement
the argument was that the segregation
laws being manifestly unjust
aggregations of human nature were meant
to be violated because they could not be
seen as binding on the conscience
there's also an idea that there's no
such thing as natural law that the
natural law theory is entirely
disconnected from political realities of
laws and lawmaking this is known as
legal positivism on this view the laws
are whatever the lawmakers say and a law
will be valid just in case it's
procedurally valid for example in
federal law in the United States if it
was passed by both houses of the
legislature and signed by the executive
then it's the law provided of course
that it's not found to be
unconstitutional by the judicial branch
in the positivist tradition law is
disconnected from considerations of
morality as long as the law has been
passed in proper procedural form then
that makes it valid for example in Nazi
Germany all of the laws pertaining to
the extermination of Jews and the route
undesirables for the concentration camps
were consistent with German law at the
time so what they did was not illegal in
any positivist sense of the word and in
the United States prior to the 1860s
slavery was entirely legal so if a slave
escaped to the north the law required
that the slave be returned and there's
another sense of law which doesn't even
involve Kings or politicians in the
evolution of many societies we see the
development of law in what could be seen
as an organic process all societies will
need to discover ways of living and
working together so it makes sense that
they would develop rules from regulating
their interactions with each other this
might seem like random trial and error
but it's actually an evolutionary
process that yields stable but also
flexible and gradually changing
procedures which are like laws for those
communities the English common law and
customary law the international merchant
law that developed in the Middle Ages
these are some examples of this process
in action what counts as validity in
this model is the extent to which the
rules actually do facilitate social
interaction and accord with people's
general sensibilities about right and
wrong and efficiency understanding law
as an evolutionary process is probably
the best way to make sure that on the
one hand we have stable rules that
people can understand and use to
coordinate their behavior but at the
same time provide for flexibility and
individuality and cultural pluralism a
system like this is generally more
conducive to freedom than more
authoritarian top-down systems
[Music]
people wonder where law comes from in an
obvious sense law comes from lawmakers
it could be a king or in a modern
context legislative bodies like the US
Congress or the various state
legislatures or the City Council but if
we dig deeper we can see that there are
several possible sources for the laws
authority so there's natural law theory
on this view there are principles of
right and wrong that are part of the
nature of the universe as much as laws
of math or logic or physics most natural
law theorists argue that God's law is
the fundamental underwriting theory of
justification for man-made laws there's
also a secular natural law tradition in
either case the main idea is that
legislators are trying to figure out
what right and wrong really are and what
principles we should live by to be a
valid law on this view is to conform
with the natural law an unjust law then
isn't really a law one example would be
in the Declaration of Independence they
declared their rebellion against the
royal authorities on the grounds that it
was no longer morally binding on them
similarly in the civil rights movement
the argument was that the segregation
laws being manifestly unjust
aggregations of human nature were meant
to be violated because they could not be
seen as binding on the conscience
there's also an idea that there's no
such thing as natural law that the
natural law theory is entirely
disconnected from political realities of
laws and lawmaking this is known as
legal positivism on this view the laws
are whatever the lawmakers say and a law
will be valid just in case it's
procedurally valid for example in
federal law in the United States if it
was passed by both houses of the
legislature and signed by the executive
then it's the law provided of course
that it's not found to be
unconstitutional by the judicial branch
in the positivist tradition law is
disconnected from considerations of
morality as long as the law has been
passed in proper procedural form then
that makes it valid for example in Nazi
Germany all of the laws pertaining to
the extermination of Jews and the route
undesirables for the concentration camps
were consistent with German law at the
time so what they did was not illegal in
any positivist sense of the word and in
the United States prior to the 1860s
slavery was entirely legal so if a slave
escaped to the north the law required
that the slave be returned and there's
another sense of law which doesn't even
involve Kings or politicians in the
evolution of many societies we see the
development of law in what could be seen
as an organic process all societies will
need to discover ways of living and
working together so it makes sense that
they would develop rules from regulating
their interactions with each other this
might seem like random trial and error
but it's actually an evolutionary
process that yields stable but also
flexible and gradually changing
procedures which are like laws for those
communities the English common law and
customary law the international merchant
law that developed in the Middle Ages
these are some examples of this process
in action what counts as validity in
this model is the extent to which the
rules actually do facilitate social
interaction and accord with people's
general sensibilities about right and
wrong and efficiency understanding law
as an evolutionary process is probably
the best way to make sure that on the
one hand we have stable rules that
people can understand and use to
coordinate their behavior but at the
same time provide for flexibility and
individuality and cultural pluralism a
system like this is generally more
conducive to freedom than more
authoritarian top-down systems
[Music]
