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Law and Morality
NB: 'GD' means 'Great Debates' by Sandy Steel and Nicholas McBride
What does 'morality' refer to?
Finnis: A person chooses how to act in any given situation in two stages: (1) a practical judgment, and (2) the self-directing choice. Morality refers to the "available criteria for assessing [one's] decisions as good or bad".
Good refers to when a person chooses to put into practice practical judgments which are true, and bad refers to when the practical judgment and self-directing choice do not line up.
The actor's choice is affected by the law: "the primary reality of law is … in its claim on my deliberating about what to decide" - a "claim on my action".
Steel: 'Moral' could carry various meanings, for example:
'subject to moral assessment'
- In which case the law does pursue 'moral ends'; what the law does can be evaluated morally.
- In which case a moral end would be an end of positive moral value
Modal, functional, social constructionist and non-social constructionist models of law
Three main parts to contemporary jurisprudence:
1. Social construction question - is law a social construction?
Legal positivists: Yes - legal validity is a matter of the social practice of legal officials.
Natural lawyers: Not entirely. The content of the law on some issues necessarily depends upon moral truths.
2. Functionalist question - is it part of the nature of law that it pursues a particular function, where that function is relatively distinctive to law?
Others: There are no functions that law necessarily pursues which mark it out as a distinctive phenomenon.
Legal theories can be classified by whether it considers law to be principally a modal kind (characterised by its mode of achieving various goals) or a functional kind (characterised by the specific function or functions it pursues)
3. Coercion question - is coercion part of the nature of law?
(see later chapter)
Fuller, Finnis, Simmonds
Dworkin, Greenberg Instrumentalists: Law can be best identified as an institution by its means rather than the ends it serves.
Social constructionist + Modal:
Hart: Law's function is to guide and criticise conduct, but this is not unique to law. What is unique to law is the ways in which it guides conduct - through primary and secondary rules (instrumentalist).
i. NB: A legal system only exists if (1) primary rules are generally obeyed, and (2) officials accept secondary rules as standards of official behaviour.
Hart: The content of the law depends on social facts, i.e. about the practices that officials have accepted. Legal 'oughts' need not be moral 'oughts'. The law is not telling you that you have a moral obligation - the law is merely changing your legal position. The law makes no claim about the moral character of those legal obligations. The law is socially constructed legal rules are just the rules of the game.
i. Support for Hart: judges create legal rules without stating any moral reason for them sometimes, e.g. planning permission, parking fines.
Social constructionist + Functional:
Fuller: Law can only be understood by looking to its purpose: governing human conduct by rules. To count as law, there must be some compliance with the RoL via the 8 desiderata of legality: rules which are published,
prospective and with which it is possible to comply; they should be intelligible, non-contradictory and reasonably stable across time, and officials must act in accordance with the published rules. Such criteria can only be understood if we accept that the law's purpose is the governance of human conduct by rules.
i. A legal system must comply to some extent with the desiderata.
ii. The desiderata are necessary but insufficient for a law being morally good.
iii. Waldron: When the law complies with the RoL, it treats people with a kind of dignity by acknowledging their ability to decide what to do.
1. Steel: Dignity is a threshold concept. If the law is very morally odious, it will not treat people with dignity even if it is clear,
Simmonds: Law is an archetypal concept. The abstract definition is provided by Fuller's desiderata. The more law complies with this archetype, the more it promotes liberty. Law's archetype is therefore a moral aspiration.
i. Simmonds and Fuller claims that even if a bad law is produced,
fulfilling the desiderata makes for a better legal system.
Finnis: The function of law is to guide people's behaviour in order to enable people to participate in morally valuable activities. Law's function is so central that failing to achieve that purpose makes something less law-like. Note that Finnis also thinks there are objective basic goods for human beings,
Non-social constructionist + Functional:
Dworkin: Law is an interpretive concept. The function of law is to insist that official coercion is only used to the extent that it is justified by past political decisions. The best conception of law is 'law as integrity': that the point of legal practice is to come up with the best justification of past legal practice.
Thus the content of the law in a legal system consists of the best moral justification of past political decisions.
i. Legal practice itself is fundamentally interpretive: judges embark on constructive interpretation of past practices.
In Justice for Hedgehogs, Dworkin even goes so far as to claim that law is a branch of political morality. He claims that legal rights are moral rights that can be enforced by the courts.
i. BUT he fails to explain why enforcement is the criterion which distinguishes legal and moral obligations. He also does not account for unenforceable legal obligations.
Greenberg: The 'moral impact theory': legal obligations are moral obligations which arise due to the actions of legal institutions. Thus moral obligations are made 'legal' due to their mode of creation.
Pitting theories against each other:
Hart (social constructionist + modal) v Fuller (social constructionist + functional)
o Mode/function disagreement is only terminological. Only difference is that for Hart, guiding behaviour is the function and the rules are the modality; for
Fuller, guiding by rules is the composite function.
o Disagree about the moral value of the law's modal features.
o Hart thinks that guiding conduct by rules only goes part of the way to distinguish law from other kinds of thing.
Hart (social constructionist + modal) v Dworkin (non-social constructionist +
o NB: Hart and Dworkin are generally engaged in different enterprises: Hart is concerned with describing the concept of law; Dworkin is concerned with normatively justifying law.
o Hart: Sanctions/coercion is not necessary for the existence of law.
o RoR vs 'theoretical disagreement'
Dworkin claims that theoretical disagreement can only be explained by virtue of the claim that law is an interpretative concept.
o Dworkin also claims that, apart from theoretical disagreement, the interpretation of social practices always involves the three-stage constructive interpretative inquiry (a thesis about jurisprudential methodology).
Dworkin: The legal validity of a proposition necessarily depends upon the conclusion of a moral argument. Hart thinks this is only that case if the RoR
has a moral element.
Can purely descriptive theories of law actually exist?
Hart claims his theory of law is descriptive in that it is "morally neutral and has no justificatory aims". He attempts to explain the nature of the features of the paradigm case of law, claiming law is an archetypal concept. However, Hart concedes that law must inevitably give effect to certain rules of conduct: the 'minimum content of the law' (e.g.
forbidding murder, providing for a system of private property):
Finnis claims that a theory of law necessarily involves evaluation. Theories of law implicitly state what is important and significant about law. The law can only be understood from the internal POV of participants, and this involves taking up the internal perspective of a fully reasonable agent within the practice. "A theory does not have comprehensive normative inertness unless it holds that contradictory legal norms can coexist, equally valid".
o Dickson claims that importance and significance can be determined indirectly by non-moral criteria, based on what features of law are considered important and significant by those living under it. BUT there are many perspectives amongst those who live under law one perspective must be chosen.
Dworkin: Descriptive theories of law inevitably take a stance on moral issues.
Hart's theory necessarily takes sides on the moral issue of how legal disputes are to be decided: "in favour of those who insist that the legal rights of the parties are to be settled entirely by consulting the traditional sources of law".
o Dworkin is not claiming that theories of law cannot be descriptive at all -
they just cannot claim to be purely descriptive. For example, whether the interpretive attitude exists is a descriptive claim.
o GD: Hart's account of the concept of law does not systematically disadvantage any party in a dispute. Also, if a descriptive account of some concept leads to a moral consequence, the account does not thus become a moral argument.
The only claims which can truly be said to be 'natural law' claims are: (i) unjust laws are not laws, and (ii) the central case of law performs certain moral functions. Finnis is thus the best example of a natural lawyer, as he agrees with (i) and also a version of (ii).
Are unjust laws actually laws?
a. Dworkin: Legal rules only have force if they give rise to associative obligations. This requires the state to treat us with equal concern and respect. Thus, the government must speak with one voice: law as integrity.
Judges thus go through a process of constructive interpretation:
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