University of Kansas, Spring 2005
Philosophy 674: Philosophy of Law
Ben Eggleston—eggleston@ku.edu

Class notes: chapter 2

The following notes correspond roughly to what we cover, including at least a portion of what I put on the board or the screen, in class. In places they may be more or less comprehensive than what we actually cover in class, and should not be taken as a substitute for your own observations and records of what goes on in class.

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1. the main point of the next four weeks
   1. question: Does the law include moral principles—ones that it takes moral judgment to arrive at—in addition to positive law (such as laws passed by the legislature, or rules established by the judiciary)?
   2. answer from the legal positivists: No.
   3. answer from the natural-law theorists: Yes.
   4. spectrum: Aquinas, Fuller, Dworkin, Hart, Austin
2. pp. 40–49: the Nuremberg trial
   • the relevance of the Nuremberg trial to the positivism/natural-law dispute
     1. The Nuremberg trial’s basis in positive law was very thin.
        1. This basis was mainly just some treaties that supposedly created international law.
        2. But these treaties
           1. had not been reliably enforced in the past,
           2. were not, at the time, being enforced consistently,
           3. referred to nations, not individuals (such as were being prosecuted),
           4. lacked the normal features of criminal law, such as specifications of punishments.
     2. Thus, the trial’s legitimacy rests largely on whether moral principles can be appealed to in order to declare certain kinds of conduct illegal.
        1. If they can (as natural-law theorists claim), then even if the trial didn’t have much of a basis in positive law, it could still have had a firm basis in law, since law includes moral principles as well as positive law, and it could easily be argued that the defendants violated many important moral principles.
        2. If they cannot (as legal positivists claim), then if the trial didn’t have much basis in positive law, then the trial didn’t have much basis in law, period.
3. pp. 49–66: natural-law theory
   1. most extreme: Aquinas
      1. key thesis: It is not possible for some genuine laws of a political community (such as a state or a country) to be unjust (i.e., in violation of the natural law).
      2. big problem: This seems simply false: we talk all the time about unjust laws. There seems to be no reason to force ourselves to refuse to countenance the idea of unjust laws.
   2. less extreme: Fuller
      1. key thesis: The principles of legality (the inner morality of law) create a prima facie moral obligation to obey the rules of any system of positive law. (Note that this does not entail Aquinas’s thesis.)
      2. big problem: A system of positive law conforming to the principles of legality can be so unjust, in its content, that there is no moral obligation to obey it.
   3. less extreme still: Dworkin
      1. key thesis: The law include moral principles—ones that it takes moral judgment to arrive at—in addition to positive law (such as laws passed by the legislature, or rules established by the judiciary). (Note that this does not entail Aquinas’s thesis or Fuller’s thesis.)
      2. What moral principles are included?
         1. only ones that fit
            1. consistency
            2. rationalization/justification
         2. the best ones that fit
            1. This means the morally best ones: the morally most defensible ones.
            2. This means that knowing what the law is requires being able to make moral judgments (about which principles are better than others).
      3. example: same-sex marriage
         1. federal rules regarding marriage
            1. For the most part, states can do what they want.
            2. But the Fourteenth Amendment says, among other things, “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.”
         2. Obviously these rules are very vague (and not just because of the casual way in which they’re stated here). As current events indicate, they do not clearly indicate whether states are allowed to deny same-sex couples the institutions of marriage and civil union.
         3. Here are some moral principles that might be regarded as underlying these federal rules.
            1. It is morally permissible for states to deny these institutions to whomever they want.
            2. It is immoral for states to deny these institutions to anyone.
            3. It is morally permissible for states to deny these institutions to same-sex couples in the name of promoting Judeo-Christian values.
            4. It is morally permissible for states to deny the institution of marriage to same-sex couples in the name of promoting Judeo-Christian values, but denying them civil unions is going too far.
            5. It is morally impermissible for states to deny either of these institutions to same-sex couples.
         4. Obviously the first two principles are not even consistent with the federal rules, so they surely are not part of the law. But the last three principles not only are consistent with those rules but also rationalize them. So the task now is to figure out which principle is the best one, morally speaking.
      4. questions
         1. So, can judges be activist? Yes, if they think the best moral principles that fit the positive law require it.
         2. Doesn’t this open the door to lots if disagreement about what the law is, since there is lots of disagreement about what the best set of moral principles (or philosophy of government) is? Yes. And Dworkin says this will just have to be settled by judges’ and other legal interpreters’ arguing about morality.
4. pp. 66–76: legal positivism
   1. more extreme: Austin
      1. key thesis: Law consists of the general commands, backed by credible threats, of the sovereign.
         1. The sovereign of some political community is whoever is generally obeyed, but does not, in turn, generally obey anyone else.
         2. So, there is no content test for whether something is a law—a very unjust command could still be a law. Thus, one might have a legal obligation to do something quite immoral.
      2. big problem: A legal system should be distinguishable from a gunman who says “Your money or your life.”
   2. less extreme: Hart
      1. Hart’s theory is based on the idea of a rule.
         1. A rule exists when two things are true of people.
            1. They generally act in a certain way.
            2. They regard deviations from that way of acting as deserving of criticism.
         2. A rule creates an obligation when three things are true of it.
            1. It is backed by social pressure for conformity.
            2. It maintains an aspect of society regarded as important.
            3. It requires self-sacrifice.
         3. A rule creates a legal obligation when it is part of a legal system.
      2. A legal system is the union of primary and secondary rules.
         1. A legal system has to have primary rules—prohibiting things, etc.
         2. There must be secondary rules of three kinds.
            1. a rule of recognition
            2. rules for changing the rules
            3. rules for enforcing the rules