Legal Theories

1
Legal Theories

• Natural Law Theory
• if according to natural law theory there is no
  clear distinction between the notion of law and
  the notion of morality
• and there are at least some laws that depend
  for their authority not on some pre-existing
  human convention, but on the logical
  relationship in which they stand in relation to
  moral standards
• then some laws are authoritative by virtue of
  their moral content
• ie. even when there is no legal convention
  that makes moral merit a criterion of legal
  validity

• St Thomas Aquinas
• if standards of morality are derived from, or
  entailed by, the nature of the world and the
  nature of humans
• and the rational nature of humans is that which
  defines moral law
• ie. the rule and measure of human acts is that
  of the reason, which is the first principle
  of human acts
• then since humans are by nature rational
  beings, it is morally appropriate that humans
  should behave in a way that conforms to their
  rational moral nature

2
Legal Theories

• Legal Positivism
• if the laws of a society express nothing more
  than the will of the sovereign who legislates
  them
• and there is no necessary connection between
  law and morality
• then legal validity is ultimately determined by
  reference to basic social facts and social
  conventions
• ie. a rule (law) R is legally valid in a
  society S
• iff R is commanded by the sovereign in S and
  is backed up with the threat of a sanction

• John Austin
• if all laws properly and strictly so called
  are commands of the sovereign - accompanied by
  threat of sanction
• and however influential in courts, rules or
  conventions not made or adopted by sovereign are
  not laws properly so called
• then having a legal obligation to obey is being
  the subject of a command and susceptible to its
  accompanying sanction
• so legal rights including legal powers are to
  be explained in terms of commands

3
Harts Critique of Austin

• Every (evolved) society with a full-blown legal
  system has a rule of recognition that articulates
  the criteria for legal validity
• ie. provisions for making, changing and
  adjudicating law
• but Hart rejects Austin's view because the
  institutional application of coercive force can
  no more give rise to an obligation than can the
  application of coercive force by a gunman
• ie. despite the gunman's belief that he is
  entitled to make a threat, the victim is
  obliged, but not obligated, to comply with the
  gunman's orders
• then 2 minimum conditions for the existence of a
  full legal system
• 1. rules of behaviour are valid according to
  the system's ultimate criteria for validity -
  rules must be generally obeyed
• 2. rules of recognition specifying the criteria
  of legal validity along with the rules of
  change and adjudication must be recognized as the
  public standard of behaviour

4
H.L.A. Hartthe union of primary and secondary
rules

• if primary rules regulate conduct and restrict
  freedom
• but secondary rules are on a different level,
  they recognize primary rules
• ie. they are all about primary rules in the
  sense that they are concerned with recognizing
  what the primary rules stipulate
• then secondary rules are concerned with the
  primary rules themselves
• ie. they specify the way in which the primary
  rules may be ascertained, introduced,
  eliminated, and varied
• so three types of secondary rules that mark the
  transition from primitive forms of law to
  full-blown legal systems
• 1   the rule of recognition - which specifies
  some feature of the social pressure it exerts
• 2   the rule of change - which enables a
  society to add, remove, and modify valid
  rules and
• 3 the rule of adjudication - which provides a
  mechanism for determining whether a valid rule
  has been violated

5
Ronald DworkinPrinciples v. Rules

• if rules (Hart) apply in an all-or-nothing
  fashion
• then when the facts of a rule are stipulated,
  either the rule is valid, in which case the
  answer it supplies must be accepted as it stands
• or the rule is not valid, in which case it does
  not apply and it contributes nothing to the
  decision
• but this is not the way principles operate ?
  justice
• ie. they state a reason that argues in one
  direction, ? morality
• but, they do not necessitate a particular
  decision ? fairness
• so conflicting principles provide competing
  reasons that must be weighed according to the
  objectives the seek
• ? rules are distinguishable from principles in
  two respects
• 1. rules necessitate, where principles only
  suggest a particular outcome
• 2. principles have, where rules lack, the
  dimension of weight

6
Riggs v. Palmerinterpreting moral principles
statutory interpretation

• The court considered the question of whether a
  murderer could take under the will of his victim.
  At the time the case was decided, neither the
  statutes nor the case law governing wills
  expressly prohibited a murderer from taking under
  his victim's will. Despite this, the court
  declined to award the defendant his gift under
  the will on the ground that it would be wrong to
  allow him to profit from such a grievous wrong
• The court decided the case by citing the
  principle that no man may profit from his own
  wrong as a background standard against which to
  read the statute of wills and in this way
  justified a new interpretation of that statute
• Dworkin maintains that the legal authority of
  standards like the Riggs principle cannot derive
  from promulgation of rules in accordance with
  purely formal requirements
• so The legal authority of the Riggs principle
  can be explained wholly in terms of its content.
  The Riggs principle was binding, in part, because
  it is a requirement of fundamental fairness that
  figures into the best moral justification for a
  society's legal practices considered as a whole
• and A moral principle is legally authoritative
  insofar as it maximally leads to the best moral
  justification for a society's legal practices
  considered as a whole