Summarize Philosophy of Law - Tri
PHILOSOPHY
OF LAW
1.
Philosophy of law as the branch of philosophy and
jurisprudence.
Philosophical methods of law interpretation
a/ 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.
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.
b/ 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.
2.
The system of philosophy of law: epistemology of law; ontology of law; axiology
of law
a/
Epistemology 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.
b/The
ontology 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 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?
c/
Axiology 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.
3.
The basic philosophical approaches towards understanding of law
There are roughly three categories into which the topics
of legal philosophy fall: Analytic jurisprudence, normative jurisprudence and
critical theories of law.
a/
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.
b/
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.
c/
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).
4.
Philosophical basis for legal positivism (A. Comte)
Auguste Comte was a
French writer and philosopher who formulated the doctrine of positivism.
According to him, the
characteristics of positivism are:
- Science is the only
valid knowledge.
- Fact is the object of
knowledge.
- Philosophy does not
possess a method different from science.
- 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.
- 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.
5.
Classical legal positivism (J. Bentham, J. Austin)
Both held that the law is
the command of the sovereign backed by the threat of punishment.
a/ 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.
b/ 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”.
6.
Modern legal positivism (H. Kelsen, H.L.A. Hart)
Contemporary legal
positivism has long abandoned this view.
a/ H. Kelsen
In the 20th 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 Basic 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.
b/ 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:
- 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.
7.
Exclusive and inclusive legal positivism
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.
a/
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.
b/
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.
8.
Scandinavian and American legal realism
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.
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 is insufficient to logically entail a unique legal
outcome in most cases worth litigating at the appellate level
(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”.
9.
Psychological concept of law by L. I. Petrażycki
10.
Epistemology of natural law theory.
Epistemology of Natural
Law Theory: metaphysics as the method of knowing the law.
11.
Ontology of natural law theory
Ontology of Natural Law
Theory: dualism of natural law and positive law.
It is actually the
question of “ what is law?”
12.
Axiology of nature law theory.
Axiology of Natural Law
Theory: Overlap Thesis – there is a necessary relation between the concepts of
law and morality.
Axiology is the
philosophical study of value.
Axiology studies mainly
two kinds of values: ethics and aesthetics.
- Ethics investigates the
concepts of "right" and "good" in individual and social
conduct.
- Aesthetics studies the
concepts of "beauty" and "harmony."
13.
Natural law’s concepts of equity
That which is founded in
natural justice, in honesty and right, and which arises ex aequo et bono. It
corresponds precisely with the definition of justice or natural law, which is a
constant and perpetual. will to give
to every man what is his. This kind of equity embraces so wide a range, that human tribunals have never attempted to enforce it.
Every code of laws has left many matters of natural justice or equity wholly
unprovided for, from the difficulty of framing general rules to meet them, from
the almost impossibility of enforcing them, and from the doubtful nature of the
policy of attempting to give a legal sanction to duties of imperfect
obligation, such as charity, gratitude,
or kindness.
14.
Concept of law by Ronald Dworkin
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.
16.
Libertarian Theory of Law
a/ Law as a measure of
freedom. Formal equity as the basic principle of law. Libertarian theories of
law build upon classical liberal and individualist doctrines.
b/ 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 social order
c/ ‘Self-ownership’ is
simply one way to say that individual human beings are not slaves or
computers.In our context of Libertarian Legal Theory, it is preferable to refer
to individual rights. Libertarian and classical liberal theory describe the
doctrine of individual rights as the ability of every individual to pursue his
own interests unhindered, while not violating the same ability of other
individuals. The common way to describe
this is that every person has a right to life, liberty, and property.
17.
Positivist concepts of human rights
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.
18.
Ideology of natural rights
a/
Locke
Locke wrote that all individuals are equal in the sense that
they are born with certain "inalienable" natural rights. That is,
rights that are God-given and can never be taken or even given away. Among
these fundamental natural rights, Locke said, are "life, liberty, and
property."
Locke also argued that
individuals should be free to make choices about how to conduct their own lives
as long as they do not interfere with the liberty of others. Locke therefore
believed liberty should be far-reaching.
According to Locke there
are three natural rights:
- Life: everyone is
entitled to live.
- Liberty: everyone is
entitled to do anything they want to so long as it doesn't conflict with the
first right.
- Estate: everyone is
entitled to own all they create or gain through gift or trade so long as it
doesn't conflict with the first two rights.
b/ Hobbes' conception of
natural rights extended from his conception of man in a "state of
nature". Thus he argued that the essential natural (human) right was
"to use his own power, as he will himself, for the preservation of his own
Nature; that is to say, of his own Life; and consequently, of doing any thing,
which in his own judgement, and Reason, he shall conceive to be the aptest
means thereunto." (Leviathan. 1, XIV)
19.
Classifications of human rights - Generations of human rights (K. Vasak).
Status negativus, status positivus, status activus (G. Jellinek)
a/ 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.
b/ 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
20.
Human rights protection
a/ 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.
b/ 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.
