Pound, Introduction to Philosophy of Law

 Philosophy of law has taken a lead role in all study of human institutions
o Philosophical legal thinking of the past is a force in administration of justice of
the present
 Philosophy has been a useful servant in legal development, but also a master.
o Used to break down authority of outworn tradition
o Sought to give a complete and final picture of social control
 Two needs for philosophical thinking:
o Paramount social interest
o General Security: interest in peace and order
 Lead to new legal development
 Philosophies of law have attempted to formulate a general theory of the legal order to
meet the needs of some given period of legal development
 GREEK LAW:
o First stage: kings decide causes by divine inspiration
o Second stage: customary course of decision has become tradition passed by an
oligarchy
o Later: popular demand results in body of enactment
o In order to convince rich and poor to maintain an orderly fashion of social status
quo, it would not do to tell them that law was a gift from God
o They coupled custom and enactment
o “What is just in itself, just by nature or in its idea”
o Undifferentiated law and morals
o Cicero’s three elements of law:
 Twelve tables, subsequent legislation, interpretation, traditional law
 Mass of rules, largely procedural
 Writings of jurisconsults
o If it was law, IT WAS LAW BY NATURE
 The one that gave to that subject its perfect development
 Was a philosophical theory for a period of growth
 ROMAN LAW:
o During the time of the Romans, seeds of legal systems were born.

 Body of enactment of laws – legislation, publication of simple rules.
 Therefore, from here we get Positive Law although the Roman systems
also carried divine law before positivism settled.
 We can say that Positivism came fully on itself during the Common Law
Period or at the point of juristic writing or legal science. This started
during the decline of feudal society inspired by Divine rights.
o People began to question the divine rights of kings and the divine law.
o It is during this time that they began elevating man-made law so that positive
law or enacted law was emphasized and as a result, laws during this time must
be a result of a process.

 In England, strict law made for feudal England out of Germanic materials, superficially
Romanized
o It put a scientific foundation under the medieval scheme of claims and duties in
relation of king to tenants

1
 o Enabled the common-law rights of English men to become the natural rights of
man
o “STATE OF NATURE”: state which expressed the ideal of man as a rational
creature
 th
18 century focused on codification of laws: time of analysis and classification.
 19th century: no more able to get on without philosophy of law than were its
predecessors
o All modes of rationalizing the juristic desires of the time, growing from interest
in general security from reaction during a period
 Today: there is a revival of natural law
o We are asked to think of laws in terms of social utility
o Might need some new philosophical theory of law, steadying philosophical
conception to safeguard the general security, in order to make the which we
hand down to achieve justice in this time and place.

Marmor, Andrei

 What is the nature of law?

o Unique social-political phenomenon that can be discerned through
philosophical analysis
 Reasons for philosophical interest
o Intellectual interest in understanding complex social phenomenon
o Attempt to explain the normative, reason-giving aspect of law
 Two main interests in nature of law
o General conditions
o Normative aspect
 Explanatory task: consists of an attempt to explain how legal norms give
rise to reasons for actions
 Justification; reasons people out to have for acknowledging law’s
normative aspect
 Legal positivism: asserts that conditions of legal validity are purely a matter of social
facts
 Natural Law: denies that conditions of legal validity are purely on social facts

 Conditions of Legal Validity

o Natural lawyers maintain that the moral content of norms alao form part of the
conditions of legal validity
o Separation Thesis: there is separation between law and morality
 Pertains only to conditions of legal validity saying that these do not
depend on moral content of the norms in question
o Inclusive Legal Positivism
 Endorses the Social Thesis: sometimes a matter of moral content of
norms, depending on particular conventions that happen to prevail in a
community
o Natural Law has undergone refinement:

2
  The idea that law must pass a moral filter in order to count as law is
incompatible with the legal world as we know it
o Dworkin’s theory:
 He argued that the falsehood of Legal Positivism resides in the fact that
it’s incapable of accounting for the important role that legal principles
play in the law
 Rules apply to circumstances to determine legal outcome. Principles on
the other hand do not determine outcome, they just provide judges
with reasons to decide case.
 Most problematic aspect of legal principles: moral dimension
 Moral principles: validity is purely content dependent
 Legal principles: validity from a combination of source-based
and content-based consideration
 Argument:
 Determining what law requires in every case involves
interpretative reasoning
 Interpretation involves evaluative considerations
 Normativity of Law
o Law is known as a coercive institution
 Hans Kelsen: Law’s power to impose its demands by violent means is
most important function in society
 Hart and Raz deny this
 Law also serves to resolve disputes about fact, setting standards
for desirable behavior, which are not coercive
o Legal Realism: attempt to introduce social sciences into jurisprudence for
predictive purposes
o Raz’s authority:
 Law is an authoritative social institution
 Essential role of authorities is to mediate between putative subjects of
authority and the right reasons which apply to relevant circumstances
 To claim authority it:
o Directives are identifiable as authoritative directives
o Must be capable of forming an opinion on how its
subjects ought to behave
 Exclusive Legal Positivism:
o A norm is legally valid only if its validity does not derive
from moral or evaluative considerations
o Any attempt to understand what the law is must rely on understanding of law’s
functions in society
o We cannot understand law without understanding the ways in which
it is regarded by those whose law it is

Two General Theories of Law:

1. Natural Law Theory

a. Validity of Law: Natural Law gets is validity from its source. Law is valid if it

conforms to an ideal – that it is morally good, etc. Because of this, it cannot

3
 be proven or disproved as it is solely based on a certain framework. It
originated from Divine Law that cannot be proven or disproven. The modern
theory of natural law, however, is based on the inalienable rights of man.
Thus, the resurgence of Natural Law in the modern times. 


b. Normativity of Law: People follow the Natural Law because they seek the Common
Good. 


2. Positive Theory

a. Validity of Law: The source of legal validity are social facts – norms of 
people,
customs or in short, based on the compliance of the law-making 
process. It is
about process. 


b. Normativity of Law: People follow this law due to the consequences of 
not
following it. 


Raz, The Rule of Law and its Virtue

1. the Basic Idea
 ‘The rule of law’: people should obey the law and be ruled by it.
o Legal theory definition: government shall be ruled by the law and subject to
it
 The problem
o If government is, by definition, government authorized by law (p.213) the
rule of law seems to amount to an empty tautology, not a political ideal.
o It is humanly inconceivable that law can consist only of general rules and it
is very undesirable that it should
 Doctrine of Rule of Law
o does not deny that every legal system should consist of both general, open,
and stable rules and particular laws
o subjection of particular laws to general, open, and stable ones.
o Two aspects
 (1) that people should be ruled by the law and obey it
 (2) that the law should be such that people will be able to be guided
by it.
o if the law is to be obeyed it must be capable of guiding the behaviour of its
subjects

2. Some Principles
 All laws should be prospective, open, and clear.
o An ambiguous, vague, obscure, or imprecise law is likely to mislead or
confuse at least some of those who desire to be guided by it.
 (2) Laws should be relatively stable.
o people need to know the law not only for short-term decisions
o Stability is essential if people are to be guided by law in their long-term
decisions.5

o Three important points

4
  conformity to the rule of law is often a matter of degree, not only
when the conformity of the legal system as a whole is at stake, but
also with respect to single laws.
 the principles of the rule of law affect primarily the content and
form of the law (it should be prospective, clear, etc.) but not only
them.
 it is also concerned with the exercise of private powers
 The making of particular laws (particular legal orders) should be guided by open,
stable, clear, and general rules
o They make it difficult for people to plan ahead on the basis of their
knowledge of the law. This difficulty is overcome if laws are enacted only
within a framework set by general laws and which impose limits on the
unpredictability
 Two general rules for laws:
o Confer powers to make valid orders
o Impose duties to power-holders how to exercise the powers
 Independence of judiciary
o Since the court’s judgment establishes conclusively what is the law in the
case before it, the litigants can be guided by law only if the judges apply the
law correctly
 Principles of justices
o Absences of bias
 Review powers of the other princples
o To ensure conformity (review of subordinate and parliamentary legislation)
 Courts should be accessible
o Opposite turns enlightened law to dead letter
 Police shouldn’t be allowed to allocate resources to prevent and detect certain
crimes or prosecute a class of criminals
 1 – 3: law should conform to standards to guide action
 4 – 8: legal machinery in enforcing law do not deprive it of its ability to guide
3. Value of Rule of Law
 The rule of law is often rightly contrasted with arbitrary power. Arbitrary power is
broader than the rule of law
o arbitrary only if it was done either with indifference as to whether it will
serve the purposes which alone can justify use of that power or with belief
that it will not serve them.
 We value the ability to choose styles and forms of life, to fix long- term goals and
effectively direct one’s life towards them
 protection of individual freedom.
 Predictability in one’s environment does increase one’s power of action.9
 observance of the rule of law is necessary if the law is to respect human dignity
 Observing the rule of law by no means guarantees that such violations do not occur.
But it is clear that deliberate disregard for the rule of law violates human dignity
 The violation of the rule of law can take two forms. It may lead to uncertainty or it
may lead to frustrated and disappointed expectations
 Complete conformity is impossible and maximal possible conformity is on the whole
undesirable (some controlled administrative discretion is better than none). It is

5
 generally agreed that general conformity to the rule of law is to be highly cherished.
But one should not take the value of the rule of law on trust nor assert it blindly

4. Rule of Law and its Essence

 The rule of law is essentially a negative value. The law inevitably creates a great
danger of arbitrary power—the rule of law is designed to minimize the danger
created by the law itself.
 Thus the rule of law is a negative virtue in two senses:
o conformity to it does not cause good except through avoiding evil
o the evil which is avoided is evil which could only have been caused by the
law itself.
 Thus the rule of law is an inherent virtue of the law, but not a moral virtue as such.
o it is a moral requirement when necessary to enable the law to perform
useful social functions
5. Pitfalls
 The undoubted value of conformity to the rule of law should not lead one to
exaggerate its importance.
 Hayek’s main objection is to governmental interference with the economy: (Author
is against his view)
 Since the rule of law is just one of the virtues the law should possess, it is to be
expected that it possesses no more than prima facie force. It has always to be
balanced against competing claims of other values.
 In considering the relation between the rule of law and other values the law should
serve, it is of particular importance to remember that the rule of law is essentially a
negative value. It is merely designed to minimize the harm to freedom and dignity
which the law may cause in its pursuit of its goals however laudable these may be.

Eagleton, Significance of Theory

 Distinguishes man from animal: moves within a world of meaning
o Makes difference to activities we share with them
 We have theories to stabilize our signs
 If human existence is theoretical, then theory is an activity which goes on all the time
o Theory happens when it is both possible and necessary for it to do so, when
traditional rationales stand in danger of being discredited
o Theory is a practice forced into a new form of self-reflectiveness
o Theory potentially destabilizes social life, but also a conservative force since it
seeks to supply us with new rationales for what we do
 Object of theory:
o History is the target
 Crisis of humanities
o Under threat from materialist society, where valuable activity in society was
earning money
o If humanities are in deep trouble, then theory may either be used to expose
their ideological roots, or deployed to refurbish them in new ways
 The question of uses of theory: political rather than intellectual

6
  Children make the best theorists, since they have not been educated into accepting
routine social practices as natural
o Those children who remain discontent tend to grow up to be emancipatory
theorists “alienation effect”
 Emancipatory theory
o Regress us to childhood, to encourage us to be inept actors

St. Thomas Aquinas, Summa Theologica

 Essence of Law
o Does it pertain to reason?
 YES, law is a rule and measure of acts where man is induced to act or
not to act
 The rule of measure of how he acts is reason
 But in order that man acts freely following the commands of law, it
should be in accord with some rule of reason. In this case, the will of the
sovereign has the force of law
o Is the law directed towards a common good?
 YES, Since end of human life is bliss or happiness, the law must regard
principally the relationship to happiness.
 Since man is part of a perfect community, the law should be related to
the universal happiness of everyone
o Are the reasons of man competent enough to make laws?
 Not by himself since law is an ordinance of the people. Something that
is sanctioned together with commonality.
 Since it regards the order of common good, it belongs to the people as a
whole.
o Is it necessary to promulgate a law for it to be valid?
 YES, application of law to man is made when they are notified of it
 It is necessary for law to obtain force
 Natural law is promulgated by God who had instilled it into man’s mind
so that he knows it naturally
 Of the Various Kinds of Law
o Is there eternal law?
 YES, the whole world is ruled by Divine Providence, and Divine Reason
o Is there natural law within us?
 YES, Every act of reasoning is based on principles that are known
naturally
 Since law pertains to reason, participation of the eternal law in the
rational creature is called a law
 Unlike animals where no participation of eternal law takes place since
they are irrational creatures
o Is there human law?
 YES, knowledge acquired by efforts of reason and not given by nature is
human law
 Natural Law gives general principles, but human law determines the
specifics/individual cases
o Do we need Divine Law?
 YES, there are 4 reasons:

7
  man is told how to act with his proper end in consideration.
 Only God can dictate to man what he should and shouldn’t do
to avoid different judgments and interpretations of man of the
law since man is imperfect
 Divine Law is the one that judges interior acts of a person,
whereas human law can only judge exterior acts
 Divine Law also is able to punish evil which hasn’t been
forbidden by human law
o Is there 1 Divine Law?
 No, it is two-fold: Old Law (directs by fear of punishment) and New Law
(directs internal acts, uses love for God)
 Natural Law
o Is it a habit?
 NO, because it is appointed by reason
o There are several principles of natural law
 "good is to be done and pursued, and evil is to be avoided."
 , there is in man an inclination to things that pertain to him more
specially
 Thirdly, there is in man an inclination to good, according to the nature
of his reason, which nature is proper to him: thus man has a natural
inclination to know the truth about God
o Natural law includes “virtues”
 since each one's reason naturally dictates to him to act virtuously.
o Is natural law the same for everyone?
 YES, the natural law belongs those things to which a man is inclined
naturally: and among these it is proper to man to be inclined to act
according to reason
 Wherefore it is universally right for all men, that all their inclinations
should be directed according to reason.
o Does natural law change?
 NO, it is written in the hearts of men which cannot be abolished
 Human Law
o Is it useful to be framed by men?
 YES, man has a natural aptitude for virtue; but the perfection of virtue
must be acquired by man by means of some kind of training
 Now this kind of training, which compels through fear of punishment, is
the discipline of laws.
o Is every law derived from Natural Law?
 YES, human law is derived from reason. And reason is from nature.
o Should human law prohibit all vices?
 NO, allows some vices, since human law is framed for a number of
human beings who are not perfect
 Man only abstains from grave vices, those that hurt others
 Purpose of law is to lead man to virtue GRADUALLY, not suddenly
o Laws framed by men are binding on men’s conscience since they are derived
from eternal law
o Laws are unjust if they go against Divine Law

8
 o All men are subject to the law: it is a rule of human acts and a coercive power
Thomas Aquinas is a theologist and a saint, a philosopher of natural theory.
For him, Law is an
ordinance of reason for the common good, promulgated by someone who has a care for society.
Therefore, the source of law is (God and humans):
3. A product of reason 

4. Made by someone who cares for the common good of the society
5. Validity of Law: 
Law comes from the Divine and Eternal Law.

6. Eternal Law – the whole world is ruled by Divine Providence and the whole community
of the universe is ruled by Divine Reason and the very idea of the government of things
in God the Ruler of the universe, has the nature of law. Since Divine Reason is unbound
by time, it must be called Eternal Law.

7. Divine Law – This law is necessary for the directing of human conduct so as to direct
man how to perform his proper acts in view of is last end which is eternal happiness. (2)
because of the resulting different laws from different judgment, man must know what
he must do and must avoid. (3) human law could not sufficiently curb and direct interior
acts. Therefore, Divine law is necessary. (4) In order that no evil might remain
unforbidden and unpunished, it is necessary for Divine Law to supervene whereby all
sins are forbidden. 
This adds the element of goodness in relation to god.
Natural Law
– is revealed by human law in its attempts to achieve what is ordained by the Divine
Law. These are the laws of nature, like gravity or the behavior of animals. These can be
divine through human reason and they can be the basis for human law. 

Human Law has the purpose of interpreting the divine law. It is made by man.
This is made
through reason: the stepping stone to goodness. Through reason, we
are able to separate the good from the bad and we get closer to God.
Normativity of Law:
People follow this law for the purpose of Common Good which is the
eternal happiness as the end ordained by God. It is the perfect system where there is no need
for punishment because they are all followers of the good – in short, heaven or God.
Happiness
in this sense is the perfect community where one is content.
The ideal state of law in this case
are the eternal law and the divine law. The other laws – human law and natural law – are just
extension of the Divine and Eternal law.

Finnis, John, Natural Law: The Classical Tradition

The Classical Tradition of Natural Law (What is the law)
 Natural Law in this theory is based on human rights. There are standards of reason that
motivate one to take action such as our goals and desires. These goals and desires are
intrinsic in a person wherein no one forces someone to act. Basically, it is the
understanding of human nature or what man is, in connection to the Divine. It cannot
be proven nor disproven.
 The Modern Theory of Natural Law (What is the law for)
This theory is interested more
in human capacity or what the society wants rather than the individual’s wants. It is
interested in the Common Good which is further divided into seven human goods. The
said Common Good in this case can only be achieved by acquiring these human goods,
which is in a sense, more utilitarian.

 Classical Law Theory

o The dominant concern is with judging for oneself what reasons are good reasons
for adopting or rejecting specific kinds of option.

9
 o Need to look at the goods men intend to attain to determine human capacities
and human nature
 Exclusive Legal positivism
o That state law is , a set of standards originated exclusively by con- ventions,
commands, or other such social facts.
o Exclude moral standards in controlling their duty to decide (judges)
 Inclusive legal positivism
o Inclusive legal positivists are unwilling to sever the question ‘What is the law
governing this case?’ from the question ‘What, according to our law, is my duty
as judge in this case?’
 Legal positivism
o identifies itself as a challenge to natural law theories
o ‘there is no necessary connection between law and morality’
 Relationship between legal and political philosophy
o Positivisms of various kinds, to the extent that they are not simply incoherent
(see Sects. 4 above and 7 below), reduce legal theory to a kind of technology.
Natural law theory seeks to avoid all these kinds of reductionism.
o Ethical philosophy, without any essential shift in its normative, good-reason-
seeking purpose and method, extends into political philosophy
 Authority
o ‘A practical authority is a person or institution whose directives provide
individuals with a reason for acting
o To repeat, most of our laws would have no moral authority unless they were
legally valid, positive laws. So their moral authority is also truly legal authority.
Laws that, because of their injustice, are without moral authoritativeness, are
not legally authoritative in the focal sense of ‘authoritative’.
 Rights
o If no one has any duties to or in respect of others, it will be more accurate to say
that no one has any rights at all.
o Contemporary legal philosophy (and legal theory: see Sect. 27 below) is marred
by its inattention to the human person,
 Institutionality
o Time and positivity: the law’s institutional character is an emblem of law’s
aspira- tion to bring into the present and the foreseeable future an order rooted
in the past
 Reasons
o So a first specification of the master principle is: do not answer injury with
injury: foundation of just compensation
o do not do evil—choose to destroy, damage, or impede some instance of a basic
human good—that good may come: foundation of inviolable human rights
o ‘Do to others as you would have them do to you; do not impose on others what
you would not want to be obliged by them to accept’ : excludes preferences
motivated by desires/hostilities
 Formalism
o Law cannot fulfil its co-ordinating and other directive functions unless it is
promul- gated.
 Pragmatism (realism)

10
 o insight into one’s experience of inclination and possibility, that under- standing,
reasonableness, and knowledge are not merely possibilities but also an
opportunity of participating in a basic human good, and thus a true reason for
action.
 Interpretation of legal language is in the service of co-operation and justice amongst the
persons who are now or will be members of the community whose law it is.
 Language: So the intentions of the founders,‘original intent’,is always relevant
 Objectivity, rather, is a matter of openness to the data, and willingness to entertain all
relevant questions, and to subject every insight to the critique of further questions
 Thus the relationship of interest (will, choice, action, affection) is, and is directed
towards, a truly common good.
 There is a natural friendship, affectively thin but real and intelligent, of every person
with every other person. Thus friendship and justice meet, or share a common
intelligibility
 the role of state law is to do everything needed to improve citizens’ well-being,
including their good character.
 Therefore, the conscience of any spouse who really understands the good(s) of marriage
must reject, among other things, any kind of willingness, however conditional, to engage
in non-marital sex acts.
 Torts: The backbone of tort is a set of moral—natural law—principles identifying as
wrongful all choices precisely to harm or to deceive
 Obligations: he moral obligations creatable by agreement are obligations of justice,
upholding justice is what the state’s organs are essentially for, rational basis for the legal
obligations which are the heart of what we call contract
 Property: Hence the classical natural law tradition accepts the position articulated in
Aristotle’s apparently paradoxical slogan: property is to be private in possession but
common (shared) in use.
 International Law: international law manifests in its contemporary develop- ment both
the underlying complexity of human community

Finnis

 Theory of natural law: criticized practical viewpoints to distinguish the unreasonable

from the reasonable
o Identify conditions and principles of practical right-mindedness
o To explore requirements of practical reasonableness in relation to the good of
human beings
 See our life as one whole of activities
 No leaving out of basic human values
 One’s actions should be effective, fitness for their purpose
 Product of the requirements is Morality, reduction of harm to others, increase in their
well-being
 Law is valid if they contribute to the attainment of the seven human goods: life,
knowledge, friendship, play, aesthetic, experience, practical reasonableness and
religion.
These seven human goods are necessary to say that a person has reached his
full potential. Therefore, law should be made in order to attain these goods.

11
NATURAL LAW AND THE NATURAL RIGHTS (JOHN FINNIS)
 Finnis’ Theory of
Law is that law is a standard for human action – what is good and what is bad. Natural
Law is what follows reasonable action.

Validity of Law:
 Law is valid if they contribute to the attainment of the seven human
goods: life, knowledge, friendship, play, aesthetic, experience, practical reasonableness
and religion.
 These seven human goods are necessary to say that a person has
reached his full potential. Therefore, law should be made in order to attain these goods.

Normativity of Law:

People follow law because of the authority that prods them along for society to achieve
the common goods.

Society, in order to achieve all these common goods must follow the nine requirements
or the general moral standards.

1. There must be a coherent plan of life in that there is direction and control of
human impulses. There is an idea of what kind of society they should have. 

2. There must be no arbitrary preferences among values or the openness to
ideas or other values. 

3. There must also be no arbitrary preferences among persons so there must be
no discrimination. 


4. Detachment from all specific and limited projects in case of failure. We must not be
obsessed of one good in the expense of the other goods. 


5. Commitment to try to always improve on our chosen good to pursue. 


6. Relevance of Consequences: Efficiency within reason to maximize goods not just


 for yourself but for the community (liberal perspective) 


7. Respect for every basic value in every act 


8. The requirement of the common good 


9. Following one’s conscience to foster the common good in the community. These

 nine requirements are the basis of conscience which is our compass to
achieve the seven goods, or to determine what is good or bad. 


The Natural Rights are also the means to achieve the seven goods in that we must
respect the individual’s own good which he is trying to pursue. This pursuance of all
these goods is the fulfillment of a person’s capacity.

It is only when the society lets the people freely achieve their potential that we achieve
the Common Good.

12
AUSTIN, PROVINCE OF JURISPRUDENCE DETERMINED

Lecture I
 Matter of jurisprudence is positive law, law simply and strictly so called, or law set by
political superiors to political inferiors
 LAW:
o Law set by God to his human creatures and laws set by men to men
o Laws set by men to men: political superiors, sovereign and subject
 Aggregate of rules, or any portion of that aggregate, positive law
 Positive morality: The name morality severs them from positive law, whilst the epithet
positive disjoins them from the law of God
o All laws are set by rational beings to intelligent and rational beings
 Positive law is appropriate matter of jurisprudence

13
 Every law or rule is a command
o Distinguished by the power and purpose of the party commanding to inflict an
evil or pain in case the desire be disregarded
o A signification of desire
 Command and duty are correlative terms: wherever a duty lies, a command has been
signified
o Whenever a command is signified, a duty is imposed
o HE who will inflict evil, utters a command, he who is liable to evil is obliged
under command.
 If a law hold out a reward as an inducement to do some act, an eventual right is
conferred, and not an obligation imposed, upon thos who shall act accordingly
o It is only by incurring evil that I am bound or obliged to compliance
o Only by conditional evil that duties are sanctioned or enforced
 Commands are of 2 species:
o Law or rules
 Where a command obliges generally to acts of forbearance of a class, a
command is a law or rule
 But where it obliges specific act and specifically or individually, a
command is occasional or particular
 If law is made by a sovereign assembly, deliberately, and with forms of legislation, it
would most probably be called a law.
 If uttered by a monarch, it would must probably be called an arbitrary command. These
would both be an occasional or particular command.
 Acts of forbearance of a class, are enjoined generaly by the law, acts determined
specifically are enjoined or forbidden by the command:
o First, commands which oblige generally the members of the community, or
commands which oblige persons of given classes, are not always laws or rules
o Second, command which obliged exclusively persons individually determined,
may amount to a law or rule
 A law is a command which obliges a person or persons to a course of conduct
 Superiority signifies might: the power of affecting others with evil or pain, and of forcing
them, through fear of that evil, to fashion their conduct to one’s wishes
o Whoever can oblige another to comply with his wishes is the superior of that
other
o Term superiority is implied by the term command. For superiority is the power
of enforcing compliance with a wish
o That law emanate from superiors is therefore an identical expression
 Human laws, which I style positive morality have nothing of the imperative character,
they are not significations of desire by determinate superiors, just analogies.
 The meanings of the term right, are various and perplexed, taken with its proper
meaning, it comprises ideas which are numerous and complicated
 Customs are positive law by spontaneous adoption of the governed, and not by position
of political superiors
o They are not commands, not laws or rules, properly so called
o Custom is transmuted into positive law, when it is adopted as such by the courts
of justice and when the judicial decisions fashioned upon it are enforced by the
power of the state.

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 o Established by the state directly when the customs are promulgated in its
statutes
o Since established by the state, it is imperative

Lecture V
 Positive morality
o Human laws as considered to goodness or badness
o Distinguished from other laws by the union of two marks:
 They are imperative laws or rules set by men to men
 They are not set by men as political superiors, but as private persons, in
pursuance of legal rights
o 3 kinds:
 Those set by men living in a state of nature
 Those which are set by sovereigns
 Those which are set by subjects as private persons in pursuance of legal
rights
 Positive moral rules, which are laws improperly so called, are laws set or imposed by
general opinion of any class or society of persons
o Not a law in propert signification of the term
o Not armed with duty and not armed with a sanction,
o But closely analogous to law
 A law set or imposed by general opinion is an opinion or sentiment, regarding a conduct
of a kind, which is held or felt by an indeterminate body
 Positive moral laws are of 2 species:
o Express or tacit commands
o Improperly so called but analogous to laws which are set by general opinion or
uncertain bodies
 Duties imposed by positive laws may be styled as legal
 Where the duty is the creature of a positive moral rule, the nature of the corresponding
right depends upon the nature of the rule
 Distinction between natural law is that positive law is the creature of human sovereigns
and not of the Divine monarch

15
HART, PRIMARY AND SECONDARY RULES

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 Rules of the first type impose duties
o Concern actions involving physical movement or changes
 Rules of the 2nd type confer powers, public or private
o Provide for operations which lead not merely to physical movement or change,
but to the creation or variation of duties or obligations
 Austin wrongly claimed to have found in notion of coercive orders, there should have
been combination of these two types of rules
 Theory of law as coercive orders, started from the correction appreciation of the fact
that where there is law, there human conduct is made obligatory
 The statement that someone was obliged to do something, normally carries the
implication that he actually did it
 The fundamental objection is that the predictive interpretation obscures the fact that,
where rules exist, deviations from them are not merely grounds for a prediction that
hostile reactions will follow or that a court will apply sanctions
 The statement that someone has or is under an obligation does indeed imply the
existence of a rule
 Rules are conceived and spoken of as imposing obligations when the general demand
for conformity is insistent and the social pressure brought to beer upon those who
deviate or threaten to deviate is great
o The seriousness of social pressure behind the rules is the primary factor
determining whether they are thought of as giving rise to obligations
 Rules so essential as those which restrict free use of violence are though of in terms of
obligation
 The social pressure appears as a chain binding those who have obligations so that they
are not free to do what they want
 If society is to live by primary rules alone, the following conditions must be complied
with:
o Rules must contain in some form of restriction on free use of violence, theft,
and deception to which human beings are tempted but which they must repress
if they are to exist in close proximity with each other
o Those who fear social pressure and induces them to conform should be no more
than the minority
o DEFECTS:
 Uncertainty
 Static character of rules = slow change
 Inefficiency of the diffuse social pressure by which the rules are
maintained
o REMEDY TO DEFECTS: Supplementing the primary rules of obligation with
secondary rules
 Secondary Rules:
o Concerned with the primary rules themselves
o They specify ways in which primary rules may be conclusively ascertained,
introduced, eliminated, varied, and the fcat of their violation conslusively
determined.
o Rules of recognition – remedy for uncertainty

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  Specify some feature or features possession of which by a suggested
rule is taken as a conclusive affirmative indication that it is a rule of the
group to be supported by the social pressure it exerts
 Step from pre-legal to legal
 Conclusive identification of the primary rules of obligation
o Rules of change – remedy to static quality
 That which empowers an individual or body of persons to introduce
new primary rules for the conduct of the life of the group and to
eliminate old rules
o Rules of adjudication – remedy to inefficiency
 Empowering individuals to make authoritative determinations of the
questions whether, on a particular occasion, a primary rule has been
broken
 Such rules define the procedure to be followed, and confer judicial
powers and a special status on judicial declaration about the breach of
obligations
 Judge, or court, jurisdiction and judgement
 The rule which confers jurisdiction will also be a rule of recognition,
identifying the primary rules through the judgements of the courts and
these judgements will become a source of law
VI FOUNDATIONS OF A LEGAL SYSTEM
 Consist of the situation in which the majority of a social group habitually obey the
orders backed by threats of the sovereign
 If the use of an accepted rule of recognition in making internal statements is understood
and carefully distinguished from an external statement of fact that the rule is accepted,
many obscurities concerning the notion of legal validity disappear
 The assertion that an internal statement applying an accepted but unstated rule of
recognition and meaning no more than valid given the system’s critera of validity, the
assertion that exists can only be a statement of fact.
 There should be a unified or shared official acceptance of the rule of recognition
containing the system’s criteria of validity
 Two minimum conditions for existence of legal system
o Rules of behavior which are valid according to system’s ultimate riteria of
validity must be generally obeyed
o Its rules of recognition specifying the criteria of validity and its rules must be
accepted as common public standards
 The first condition is one which private citizens need satisfy
 The 2nd must be satisfied by officials of the system

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DWORKIN – TAKING RIGHTS SERIOUSLY

 The professional approach tried to reformulate jurisprudential issues which brought

about the illusion of progress.
 A lawyer worries about the concepts of fault because he uses the non-legal concept of
fault to justify or criticize the law
o He believes that it is morally wrong to punish someone for something not his
fault, he wants to know whether the law offends this moral principle in holding
an employer liable for what his employee does
o This calls for analysis of moral concept of fault, not the legal concept that the
lawyer already understands
 It is the moral use of the concept that the doctrinal approach of English jurisprudence
ignored
 Do judges follow rules, or do they make up new rules and apply them retroactively?
o We may argue that the law will be economically more efficient if judges are
allowed to take the economic impact of their decision into account, but this will
not answer the question of whether it is fair for them to do so, or whether we
can regard economic standards as part of existing law
 Professional approach ignored the fact that jurisprudential issues are at their core issues
of moral principle, not legal fact or strategy
 The legal rule is comprehensible as an extension of popular theories of morality and
cause

MODEL OF RULES – I
 Legal positivism has a few central organizing propositions:

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 o The law of a community is a set of special rules used by the community to
determine which behavior will be punished or coerced by the public power
o The set of these valid legal rules is exhaustive of the law, so that if someone’s
case is not clearly covered by such a rule, then that case cannot be decided by
applying the law
o To say that someone has a legal obligation is to say that his case falls under a
valid legal rule that requires him to do or to forbear from doing something
 Austin for example, framed his version of the fundamental tests as a series of
interlocking definitions and distinctions.
o One has a legal obligation if one is among the addresssees of some legal order
or sovereign, and is in danger of suffering sanctions unless he obeys.
 Austin’s definition is too simple, and fails to account the complexity in society. Political
control in a modern nation is pluralistic and shifting
o It also fails to account for about the attitudes we take toward the law, in that
we feel that the law’s strictures and sanctions are different in that they are
obligatory in a way that the ouwlaw’s commands are not
 Hart’s version is more complex:
o Primary rules are those that grant rights or impose obligations upon membesr of
the community
o Secondary rules are those that stipulate how, and by whom, such primary rules
may be formed, recognized, etc.
o A rule differs from order by being normative, by setting a standard of behavior
that has a call on its subject beyond the threat that may enforce it. A rule can
never be binding just because some person with physical power wants it to be
so, he must have authority to issue the rule
o A rule may be binding because:
 It is accepted
 It is valid
 I call a policy: kind of standard that sets out a goal to be reached, generally an
improvement in some economic, political, or social feature of the community
 Principle: a standard that is to be observed not because it will advance or secure an
economic, political or social situation, but because it is a requirement of justice or
fairness or some other dimension of morality
 All that is meant, when we say that a particular principle is a principle of our law, is that
the principle is one which official must take into account, as a consideration inclining in
one direction or another
 When principles intersect, one must be resolved according to relative weight of each
principle. Rules do not have this dimension
 Two important roles of principles:
o Some principles are binding as law and must be taken into account by judges
and lawyers who make decisions of legal obligation
o We might, on the other hand deny that principles can be binding the way that
some rules are
 Discretion: an official’s decision is not controlled by a standard furnished by the
particular authority we have in mind when we raise the question of discretion (Strong
sense of discretion)

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o A positivist might argue that principles cannot be binding or obligatory: that
would be a mistake, there is nothing in the logical character of a principle that
renders it incapable of binding him. (Court can always be morally or
institutionally obligated)
o Positivists might argue that even though some principles are binding, they
cannot determine a particular result: principles only incline a decision in one
way, though not conclusively, and they survive intact when they do not prevail,
this seems no reason to conclude that principles do not render results because
they can dictate a result.
o A positivist may argue that princples cannot count as law because their
authority are controversial: implications of legislative and judicial history figure
along with appeals to community pracices and understandings
o

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