Philosophy of Law
Manel Domingo Bonnm 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 additional factors external from law.
The 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 is an area that is
linked to reflection, which leads to the understanding of the different ways of
understanding the concept
of the Law. Legal epistemology addresses the human being as a
unique being, where each one presents different ways of thinking and act, and
for this reason the law can have several interpretations.
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 law as a
system of norms from other 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 otherwise prescriptive issues about
the law. Here we will examine three key issues: (a) when and to what extent
laws can restrict the freedom of citizens, (b) the nature of one’s
obligation to obey the law and (c) 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, prior reasoning,
theological and metaphysical knowledge.
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 backed by
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, i.e. the sovereign;
- such
commands are enforced by sanctions; and
- 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, with a number of individuals, with each having various
authoritative powers. 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”.
Contemporary legal
positivism has long abandoned this view. 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 such as
constitutional law and “simple” law are based. 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. In a simple society, Hart
states, the recognition rule might only be what is written in a sacred book or
what is said by a ruler. Hart argues that a Rule of Recognition in general is a
customary practice of the officials (especially judges) that identifies certain
acts and decisions as sources of law. Hart claimed the concept of rule of
recognition as an evolution from Hans Kelsen’s Grundnorm, or “basic norm”.
- 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 some-times called “soft’’ or “incorporationist’’ legal positivism) and “exclusive legal positivism’’
(also known as “hard’’ legal positivism).
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 moral factors 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 specific positivistic theory. It is a view popular with some Scandinavian and
American writers. Legal realism 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.
The legal realist movement was inspired by John
Chipman Gray and Oliver Wendall Holmes and reached its apex in the 1920s and
30s through the work of Karl Llewellyn, Jerome Frank, and Felix Cohen. The
realists eschewed the conceptual approach in favor of an empirical analysis
that sought to show how practicing judges really decide cases. The realists
were deeply skeptical of the ascendant notion that judicial legislation is a
rarity. 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.
As a historical matter, legal realism arose in
response to legal formalism, a particular model of legal reasoning that
assimilates legal reasoning to syllogistic reasoning. According to the
formalist model, the legal outcome (that is, the holding) logically follows
from the legal rule (major premise) and a statement of the relevant facts
(minor premise). Realists believe that formalism understates judicial lawmaking
abilities insofar as it represents legal outcomes as entailed syllogistically by applicable
rules and facts. For if legal outcomes are logically implied by propositions
that bind judges, it follows that judges lack legal authority to reach
conflicting outcomes.
Legal realism can roughly be characterized by the
following claims:
1. the
class of available legal materials is insufficient to logically entail a unique
legal outcome in most cases worth litigating at the appellate level (the Local Indeterminacy
Thesis)-,
2. in
such cases, judges make new law in deciding legal disputes through the exercise
of a lawmaking discretion (the Discretion Thesis); and
3.
judicial decisions in indeterminate cases are
influenced by the judge’s political and moral convictions, not by legal considerations.
Though (3) is logically independent of (1) and (2),
(1) seems to imply (2): insofar as judges decide legally indeterminate cases,
they must be creating new law.
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”.
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
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.
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.
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.
The so-called “Three Generations Theory
of Human Rights” is known for dividing human rights into three separate
generations based on:
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. These
rights were proposed for the first time in the Bill of Rights of the United
States, and in France by the Declaration of the Rights of Man and Citizen in
the eighteenth century.
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 (including the
prohibition to subject a person to degrading treatment or punishment)
-
The right to personal freedom and inviolability
(including the prohibition of coercion to work)
-
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
The United Nations is
the only multilateral governmental agency with universally accepted
international jurisdiction for universal human rights legislation. All UN
organs have advisory roles to the United Nations Security Council and the
United Nations Human Rights Council, and there are numerous committees within
the UN 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.
The Office of United
Nations High Commissioner for Human Rights, a department of the United Nations
Secretariat was established following the World Conference on Human Rights in
1993. 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 Office of United Nations High
Commissioner for Human Rights conducts a very broad range of activities from is
headquarters in Geneva. It also works directly in areas where there are severe
human rights violations though field offices and as part of UN peace missions.
