Law is a social order

  • Law is a social order in which there are rules & subjects but it should be distinguished from any social order in which rules are exercising a managerial direction over their subjects, partly by the generality of its major rules & partly by the fact that its officials are bound to apply the rules which they’ve previously announced to their subjects. So there’s an essential component of collaboration & reciprocity in the enterprise of subjecting human conduct to governance of legal as distinct from managerial norms.
  • Finnis: this is nonetheless a descriptive account
  • Raz: should seek to identify the law on the basis of non evaluative characteristics only
  • Inner morality of the law consists of 8 requirements – a system of rules which must be met if a system is to be called “law”:
  • Remeber this was highlighted in the Manchester taxi case vs Donalds 1982 PAS
  1. laws should be general;
  2. laws should be promulgated, so the citizen knows the standards to which he is being held;
  3. retroactive rule making and application should be minimised;
  4. laws should be understandable;
  5. laws shouldn’t be contradictory;
  6. laws shouldn’t require conduct beyond the abilities of those affected;
  7. they should remain relatively constant through time;
  8. there should be a congruence between laws as announced and as applied.
  • NB: at the same time, Fuller recognised the concept of legal systems being “legal” to different extents and held that a system which partly but not fully met his requirements would be “partly legal” and could be said to have “displayed a greater respect for the principles of legality” than systems which didn’t meet these requirements at all.
  • Since Hart’s work for the first time opened the way for exchange between opposing views, both sides now apparently admit that the question is how can we best define and serve the ideal of fidelity of law: law, as something deserving loyalty must represent a human achievement – it can’t be a mere pattern discernible in the behaviour of state officials. Respect we owe to it must surely be something of a respect we owe to the law of gravitation..

natural lawyers on holiday

  • Raz/Kelsen’s Portrayal of natural lawyers (i.e. that law has to be moral in order to be valid & that it’s unconcerned w/legal test of validity) is wrong
    • Aquinas argued that for law to be valid it has to comply w/legal criteria for validity + must not be immoral not the same as saying natural law unconditionally surrenders tests of legal validity for those of moral one. Natural law is concerned w/practical reasonableness, not idealism.
  • A citizen has an obligation to conform to unjust stipulation to extent necessary to avoid the weakening of legal system
  • Natural law doesn’t depend on everyone sharing the same view of morality (as contended by Hart)
  • Instead, it requires that law is not immoral from objective POV, regardless of whether people accept that objective as moral understanding. This was demonstrated in the interesting case of Double glazing Glasgow vs the McArther Brothers 1823 PLA

 

  • Natural law doesn’t fail to distinguish b/w “is” & “ought to”
  • What’s practically reasonable is deduced from empirically observing human behaviour – it’s not saying that there’s a particular way laws ought to be made and that therefore laws are only valid when made in such way. The basic human goods are self evident & not suspectible to an argument that one is drawing an “is” from an “ought” – they are innate & not inferred from/demonstrable by ref to some other thing.

 

  • Law’s authority depends on justice or at least its ability to secure justice
  • It’s claim to supremacy is implausible unless it protects its subjects against threats which they’d otherwise face; e.g. invasion
  • Legal sanction is a human response to human needs, so that punishment seeks to restore the distributively just balance b/w law abiders & criminals.

 

  • The ruler has responsibility to promote common good

 

  • So rulers who don’t abide by the rule of law (which serves the common good) or make rules which arbitrarily benefit/harm a group of subjects compared to others (e.g. by granting govt. contracts to friends) have radically defective authority.

 

  • Ruler has no right to be obeyed but has authority to give directions & make morally obligatory laws + resp. for enforcing

 

  • He has that authority for the sake of common good.
  • If he uses his authority to make stipulations against common good, those stipulations will lack authority they would otherwise have by virtue of being his

 

  • For law to be morally authoritative it must comply w/practical reasonableness “in the eyes of a reasonable man” even though it needn’t be the one he himself would have made.
  • No conflict w/positive law – the act of positing a law should be guided by moral principles & rules

 

https://law.stanford.edu

A philosopher can’t give a theoretical description

    • Characterises descriptive approach of Hard/Raz as “practical view”; i.e. theorist must assess importance & significance in similarities or differences of subject matter by those whose concerns or decisions or activities constitute it (e.g. look from POV of judges or politicians). This approach isn’t satisfactory b/c it merges the different IPOVs of different actors in the field and insists on attributing one IPOV to them all, whether they are anarchists or model citizens.
  • A philosopher can’t give a theoretical description & analysis of social phenomenon unless he partakes in an evaluative exercise:
  1. human artefact such as law constituted by human actions & practices can only be understood by ref to its point
  2. the subject matter itself can’t be neatly demarcated from social life & practice
    • Should view IPOVs as at least presumptively concerned w/”practical reasonableness” (i.e. one of the ways of defining morality). Evaluations by theorist are indispensable for choosing concepts to use in description of aspects of human affairs such as law & legal order. So Finnis supports an evaluative descriptive view of the law (contrast w/Hart’s value free descriptive approach) This was highlighted in the case of Skip hire Sheffield vs McMannon Cars (1862) LLO
  • Main points
  1. There are 7 basic goods of self evident value, which are necessary for human flourishing; i.e. basic methodological requirements & general moral standards
  • Life
  • Knowledge
  • Play
  • Aesthetic experience
  • Sociability
  • Friendship
  • Practical reasonableness
  • Religion.
  1. These requirements justify the exercise of authority in the community & obligatory force of the law
  2. They demand that law is made in compliance w/rule of law & HR
  3. Law can be regarded as “radically defective” yet not invalid for want of compliance w/these requirements.