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1-1-1977
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Coleman, Jules L., "What is Legal Philosophy?" (1977). Faculty Scholarship Series. Paper 4205.
http://digitalcommons.law.yale.edu/fss_papers/4205
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WHAT IS LEGAL PHILOSOPHY *
eses is one of the dominant themes in Meta Ethics; while the search
phy in particular.
philosophy since World War II. Nowhere in legal philosophy are the
law, law? No doubt the search for the essence of law and the necessary
and sufficient conditions for the existence of a legal system leads one
distinguish law from morality--if (as the Positivists claim) the two
about the alleged moral obligation to obey law are questions of the
answers to the question: What is Law? These are the answers given
by (1) The Legal Positivist; 2 (2) The Legal Realist; 3 (3) The Natural
Law Theorist; 4 and (4) The Entitlement Theorist. 5 In each case the
theorist wants to determine when law exists and to account for its
"binding" power; that is, how the law imposes obligations on its citizens
and why, in obeying the law, citizens view themselves as being obligated
to do so.
law is for the natural lawyer rooted in moral law and obligatory for
6
that reason alone.
to moral principle. The Positivist Austin held the view that law consists
For Austin the obligatory force of law is derived from the threatened
that even where law imposes sanctions for noncompliance, the penalty
with it. Where internal acceptance fails, the sanctions are imposed
upon its sovereign the habit of obedience need not be acting from a
sense of obligation. Indeed, when one acts under threat--as does the
that contrasts with acting from obligation. One acts in such cases
required way; yet one does not appear to act as if one were under an
commands so that we may account for their binding force. But in Austin
of obedience; and his securing that is a matter of (using the term somewhat
Rules are normative as well as descriptive. They specify how one should
act and thus provide both good reasons for acting in a particular way
providing them with both reasons for acting in certain specified ways
and grounds for criticizing others whose conduct diverges from the norm.
But law may exist even in the absence of widespread internalization. The
question is how might Hart account for the obligatory aspect of valid
legal system may have both an internal and external test of validity.
we must distinguish between two kinds of legal rules. For Hart, this
rls1 2
is the distinction between primary and secondary rules. Primary
ultimate rule of the system. While other secondary rules enable indi-
does not actually confer power. Law exists when there is a union of
primary and secondary rules: where there are rules that impose duties
to obey law. Natural Law theorists disagree, however, about the point
laws must be rooted in moral standards for law to exist. Lon Fuller,
with "its own morality," the morality of law making; thus the term
"procedural natural law theory." For law to be valid, it must be the
process complies with these canons, valid law exists. The validity of
Ronald Dworkin has taken both the Positivists and the Natural
though not a moral onc. To support his claim he cites the canon which
we can interpret Fuller not as claiming that each canon states a moral
coherence, consistency and the like. Indeed, one could argue that in
moral virtues.
both Austin and Hart, legal validity is a matter of form, not substance.
cases arise when no settled rule seems to apply, or when the rule which
case actually falls under it, 1 8 or if two conflicting rules each appear
to apply equally well to the fact situation. Ex hypothesi, in resolving
in these cases. In such cases, judges must make, rather than find law.
law.
Dworkin suggests that we begin analysis not with the rule of recognition
are entitled to the best decision as a matter of law, then the judge
which litigant has the legal right in every case. Such a search may
be informed by "black letter law" valid under the rule of recognition, but
in hard cases, that won't suffice. The judge must be informed by moral
unlike rules, have the dimension of weight. How much weight a principle
in law, the principle itself is a matter of law, and more. But a thor-
ough review of Dworkin's subtle work is best left for another occasion.
taken on the question of the definition of law,, the basis for its binding
effect and the basis on which decisions can be made in law, suggests the
epitomize the struggle that has been waged across time between letter
and spirit, between rule and reason, between rule and principle for
II
uncommon for moral philosophers unfamiliar with the nature of the crimi-
respectively.
for harms caused by his fault; a victim is entitled to recover only for
those harms caused by another's fault. The rule of fault liability has
20
been abandoned in some cases failing under the rule of strict liability
sation.
does the standard of fault in torts amount to? What is its relation
that the victim's recompense come from his injurer or that the injurer's
pen<y take the form of his having to render compensation to his victim.
not to argue that in all cases strict liability would satisfy our stand-
ards of justice.
famous remark that in the absence of a good reason for shifting it, a
loss ought to lie where it falls. The fault principle suggests that
the presence of injurer fault is a good reason for shifting a loss from
the victim to his injurer. Coleman has argued that the fault principle
compensatory justice does not require that the faulty injurer bear the
What reason might one offer for imposing the victim's loss on the
account may give a reason for imposing the burden on the faulty injurer,
but it does not explain why the injurer should be made to compensate
his victim. The efficiency argument works equally well if the injurer
words, by itself, the efficiency argument does not account for the
26
compensatory component in torts.
say much that is useful or interesting about the subject unless one is
III
the field. Courses and literature have appeared on the Abortion Issue,
the Constitution. The issue arises in the following day. When goods
pay more than Y for an item suffices, given the market standard, to
justify the distribution. Of course, one can call into question the
sets out eligibility requirements; some, but not others, are entitled
and exclusion fall within the boundaries of the Equal Protection Clause.
Does this practice of the Court commit it in any way to a general political
theory about what kinds of reasons are good ones? If so, is the Con-
Amendment prescribes that the government not take private property for
they don't "touch it;" instead, the city zoning commission rezones the
land so that what was once commercial property is now a refuge for
the appropriate sense, then one must rethink the notion of property.
drastically reduces the kinds of user rights to it that one would otherwise
have. These questions suggest that the idea of property must be articulated
attracts. Perhaps this whirlwind tour of its frontiers will help make
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i "W~tR1, it be?"