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Concepts and Nature of Law Essay

John Austin’s philosophy of law was that “where there is law, there are patterns of commanding and obeying. His definition of commanding was a general one rather than specific to a given occasion or an expression of one person’s wish for another person to act a certain way. He believed that any expression of an intention did not count as a command, only the expressed intention of a superior or sovereign who has the ability and willingness to authorize a sanction in the absence of obedience to the command.Austin also stated that in the area of law, compliance could not be a one-time situation, that there should be a habit of compliance to the sovereign giving the command. The sovereigns in this case would be those with education and experience in the area of law, and those who do not have the education and experience are called subjects. Austin did not believe that laws are for the common good. He said: “To say that human laws which conflict with the Divine law are not binding, that is to say, are not laws, is to talk stark nonsense.The most pernicious laws, and therefore those which are most opposed to the will of God, have been and are continually enforced as laws by judicial tribunals. Suppose an act…be prohibited by the sovereign under the penalty of death; if I commit this act, and I object to the sentence, that it is contrary to the law of God…the court of justice will demonstrate the inconclusiveness of my reasoning, by hanging me up, in pursuance of the law of which I have impugned the validity. ” [Austin, 1832]He said that what law is is a matter of social fact, and that what law ought to be is completely different. In Austin’s view, he felt that law should aspire to the laws laid down by God, and the standard for determining this was known as the principle of utility, the belief that morality dictates that we act in a manner that maximizes societal well-being. 1) ANALYSIS Austin’s viewpoint of the philosophy of law legitimizes the commonplace of common good in that obedience to the commands are necessary to keep order in ur society. Austin accommodates the commonplace of common good, not by saying that there has never been a law passed that is contrary to the common good, but rather by addressing what law ought to be, that they should be made to achieve overall societal well-being. His viewpoint also validates the commonplace of authority, in that those who are knowledgeable in law have the authority to deliver the commands that are to be obeyed, and specify the sanctions that will be handed down if the commands are not obeyed.At first glance, Austin’s philosophy of law appears to be logical, consistent and persuasive, but it has been targeted by those who disagree with his views since he published The Province of Jurisprudence Determined in 1832. 2) CRITICISM Austin’s emphasis that sovereignty and sanctions are essential to the analysis of law makes any number of laws that we have today invalid. The law that allows someone to create a Do Not Resuscitate order (DNR) is more likely to be considered instructions on how to create a document that will be considered binding in a court of law, rather than a command with a sanction if it is obeyed.A sovereign can also be likened to a monarch who also has the capability of making the laws for their subjects in their country. When the monarch passes away, and the next monarch is put in place, the laws are no longer enforceable because the monarch who created them is death, and has no more power to make laws or determine sanctions for those who disobey. Technically and literally speaking, Austin’s view of the sovereign-subject philosophy of law is suitable only for a very specific form of society, so it does not satisfy the commonplace of authority, and possibly not the commonplace of common good.These are but a few reasons why Austin fails to satisfy the commonplaces of authority and common good with his philosophy. H. L. A. Hart 1) PHILOSOPHER’S VIEW H. L. A. Hart’s philosophy of law views law in terms of rules rather than commands. Rules have a broader range than commands. Hart had to provide an explanation of rules as they pertain to law, resulting in a system of social rules. He describes descriptive and normative social rules: descriptive social rules are in place when there is a persistent pattern of social ehavior and have an external aspect because they only describe the patterns of social behavior; normative social rules are when a large portion of a group use the rule to guide and justify their behavior, and praise or criticize the behavior of others, and have an internal aspect because they provide a yardstick that members of a group use to measure their own actions. Hart claims that law is a form of normative social rule, “a complex web of social rules whose peculiarities are due to its status as a response to deficiencies in other kinds of social rules” (Murphy, p. 28).Rules of custom, also known as customary rules, can be uncertain, static, and inefficient, but they do dictate the basic duties and rights of social life. Hart determined that these were known as primary rules. He also discussed secondary rules that include rules of recognition, rules of change, and rules of adjudication to deal with the identification of, addition to, modification of, and subtraction from the primary rules, in order to deal with any uncertainty, unchangeability, and inefficiency with the primary rules. Therefore, law is a union or system of primary and secondary rules. ) ANALYSIS Hart’s philosophy of law is logical, consistent, and very persuasive. It also satisfies the commonplace of authority with his definitions of descriptive and normative social rules, and giving de facto authority to the law, recognizing that the normal concept of law is that officials and a large segment of society treat the law as a decisive reason for compliance. He also says that law contains a minimum content of morality, meaning that while people have widely differing views on morality, they tend to agree on survival as a human aim.If legal systems do not provide a basis for survival of a large portion of those that live within that system, they will not believe there is sufficient reason to comply with the norms of that legal system. In this manner, Hart satisfied the commonplace of common good. 3) CRITICISM A member of the positivist group claims that Hart’s theory is not quite correct in that principles also play a large part in law, in addition to the rules. Even though Hart was very logical and persuasive in his philosophy of law, he was not quite as consistent as he could have been.The example of Riggs v. Palmer was very effective in making the distinction between rules and principles. A young man murdered his grandfather so he could receive his inheritance from the estate. He was convicted of murder, and filed suit on the basis that there were no laws regarding the fact that murderers cannot inherit from their victims’ estates. The court ruled against him while agreeing that his reading of the statutes was correct, based on the principle that no one should be permitted to profit from their wrongdoing. Ronald Dworkin 1) PHILOSOPHER’S VIEWRonald Dworkin, also a member of the positivism camp, disagreed with Hart’s philosophy, eventually causing a division that is still greatly debated today. Dworkin believed that principles also play a role in law, not only rules, stating that many judges rely on principles to justify their decision that are not written into the law. In the case of Riggs v. Palmer, had the judge followed the rules as written, instead of applying the principle, the young man who murdered his grandfather so he could gain an inheritance from the will would have profited from his wrongdoing.So even though the result of the case was contrary to what the statutes and settled precedents would require, the morally attractive principle was applied, and was used by the judge to render the decision. 2) ANALYSIS Dworkin was very logical in his reasoning, and utilized the positivism approach of bypassing the straightforward explanation and provided an alternative, causing the division within the positivism camp. The division is based on whether legal positivism should be “hard” or “soft,” “exclusive” or “inclusive,” “nonincorporationist” or “incorporationist. While both hard and soft positivisms agree that there is not necessarily a connection between law and morality, they disagree on whether it is even possible for morality to be incorporated into law. The hard positivist says morality cannot be incorporated into law, and when judges use moral reasoning to render a decision, they are going beyond the law. The soft positivist says that moral principles would be part of a society’s law because the rule of recognition acknowledges morality within society. 3) CRITICISMIn response to Dworkin’s assertion of the inclusion of principles into the positivist viewpoint, Hart wrote a postscript to The Concept of Law that was published after his death. The postscript confirmed Hart’s position as a soft positivist, in that permitting moral values to be incorporated into the law might make the content of law more uncertain, certainty is not only value that laws aim to realize, and by allowing the incorporation, it is better for the common good. Joseph Raz 1) PHILOSOPHER’S VIEW Joseph Raz was a student of H. L. A.Hart and is a staunch supporter of the hard positivism school of thought. He supported his argument by employing the commonplace of authority, or that law is authoritative, in order to make the case that hard positivism must be right. He said that “whenever you have a system of law, it makes claims on its own behalf that it is genuinely authoritative” (Murphy, p. 34). By the law claiming its own authority, it has “authority potential. ” Raz goes on to say the function of authority is to give people a reason to act better, calling it the “service” conception of authority.For this conception to work, the people who follow the rules, or laws, must be able to understand and apply the rules without being able or having to decide for themselves how they should act on the reasons that apply to those rules. If people are to act better by using legal norms, they need to be able to understand the norms without having to identify the reasons that apply to them. By combining the authority of law with the ability of people to understand and follow the law without undergoing moral deliberation of those laws, Raz made his argument for hard positivism.When moral values are incorporated into the law, then deliberation is required by the follower in order to understand the law; therefore, moral values should not be incorporated into law. 2) ANALYSIS – logical or illogical, consistent or inconsistent, persuasive or unpersuasive. Could include the manner in which the philosopher addresses commonplaces or inadequacies of earlier philosophies Raz was creative and persuasive in his philosophy of law. He recognized that there is morality-incorporating language in law, but says that it was in appearance only.When the Constitution spoke on “cruel and unusual punishment” without giving an exact description of what constituted such punishment, they allowed for moral determination. Without there being an authoritative ruling on what counts as “cruel,” the law on punishment is considered to be unsettled. The judge has the capability of engaging in moral reasoning to decide whether or not to strike down statutes that may seem excessive in punishment, but it should be understood that the judge is exercising limited lawmaking power, not the judge’s discovering what the law is. ) CRITICISM – the philosopher’s views, explaining logical, etc. Use illustrations or examples of situations or “clear cases” that demonstrate the philosophy’s success or failure to account for the concept and nature of law Using the commonplace of authority to define his reasons for hard positivism was illogical. In order for law to be genuinely authoritative, it would have to be true and authoritative, everywhere and always. But laws vary from state to state and from country to country, meaning that laws reflect the viewpoint of the society they are a part of.In a country whose Pledge of Allegiance contains the words “one nation, under God,” the law should have morality incorporated into it. Thomas Aquinas 1) PHILOSOPHER’S VIEW Thomas Aquinas did not only deal with human law over human communities, he also dealt with God’s law over the universe and the rational creatures in it. His definition of law is, “Law is an ordinance of reason for the common good, made by one who has care of the community, and promulgated” (Murphy, p. 38). He proposed that law consists of rules, and has mandatory standards by which the conduct of society is to be assessed in a practical manner.Law sets a standard by which society is persuaded to act or restrained from acting, and rational standards are the only standards that can persuade rational beings to act or restrain them from acting. Ergo, law is a rational standard for conduct, and contributes to the common good. Anyone can make suggestions about reasonable conduct, but Aquinas says only one who is charged with making decisions about reasonable conduct can make authoritative rulings, setting the standard for society to follow.The law must be promulgated, or published, in order to make society aware of those standards, and the authority by which the laws have been made. Aquinas says that all human law is rooted in the principles for common living in one of two ways: deduction or determinations of certain generalities. The principles of deduction reflect what we can independently know to be necessary for good common living, such as the laws forbidding murder, rape, assault, and fraud. The determinations of certain generalities refer to the vagaries between principles and their implications.Aquinas said the determinations “become requirements of reason by being reasonable solutions to the problem of how to make the principles for common living more precise and by being laid down by the public authority who has care of the community” (Murphy, p. 40). Aquinas’ view denies that it is the pedigree of a norm, in other words, its sources, that confirms the status of a norm as law. When he said that law is a rational standard or for the common good, it would follow that a norm that is passed through accepted legislature, or issued by the sovereign, it would fail to count as law due to its unreasonableness.He even went so far as to say that such rules are “acts of violence rather than laws” (Murphy, p. 40). 2) ANALYSIS Aquinas’ theory was illogical, because he insists that there is more to law than social fact. He acknowledges the commonplace of authority in saying that human law exists only when it has been made by one who has care of the community and promulgated. When he said that the law is a rational standard for conduct, binding on those who are subject to the law, and that the authority who created the law was doing so for the common good, he gave a nod to the commonplace of common good.The natural law theorist and the hard positivist have something in common when contemplating Aquinas’ theory. The hard positivist believes that legality is not necessarily constrained by morality and that legality is necessarily not constrained by morality; it is a prior constraint on law that it not incorporate morality. The natural law theorist believes that morality necessarily constrains legality; it is a prior constraint on law that it operate within the constraints of the principles for common living.The commonality is they both oppose the soft positivist in that they agree that there are constraints on the kinds of norm that can be law, regardless of society’s point of view on norm acceptance. 3) CRITICISM Brian Bix wrote: “The basic point is that the concept of ‘legal validity’ is closely tied to what is recognized as binding in a given society and what the state enforces, and it seems fairly clear that there are plenty of societies where immoral laws are recognized as binding and enforced.Someone might answer that these immoral laws are not really legally valid, and the officials are making a mistake when they treat the rules as if they were legally valid. However, this is just to play games with words, and confusing games at that. ‘Legal validity’ is just the term we use to refer to whatever is conventionally recognized as binding; to say that all the officials could be wrong about what is legally valid is close to nonsense. ” [Bix, 2002, pp. 72-73] His reasons for rejecting Aquinas’ theory of natural law make it quite clear that society cannot simply treat an overwhelming consensus that a norm is law as a mere mistake.Saying that all of the people in a society are mistaken about what the law in that society is also wrong. He holds that the way people in the society treat the norm is what fixes its status as law.References: Austin, J. (1832/1995). The province of jurisprudence determined. Cambridge, UK: Cambridge University Press. Bix, B. (2002). “Natural law theory: The modern tradition. ” Oxford Handbook of Jurisprudence and Philosophy of Law. New York, NY: Oxford University Press. Murphy, M. C. (2006). Philosophy of law. Malden, MA: Blackwell Publishing.

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