Philosophy Of Law

An Introduction To Jurisprudence

Jeffrie G. Murphy, Jules Coleman

• Publisher: Routledge
• Year: 2018
• eBook ISBN: 9780429972973
• Topic: Philosophy
• Subtopic: Philosophy History & Theory

In this revised edition, two distinguished philosophers have extended and strengthened the most authoritative text available on the philosophy of law and jurisprudence. While retaining their comprehensive coverage of classical and modern theory, Murphy and Coleman have added new discussions of the Critical Legal Studies movement and feminist jurisprudence, and they have strengthened their treatment of natural law theory, criminalization, and the law of torts. The chapter on law and economics remains the best short introduction to that difficult, controversial, and influential topic.Students will appreciate the careful organization and clear presentation of complicated issues as well as the emphasis on the relevance of both law and legal theory to contemporary society.

1

The Nature of Law

Law, says the judge as he looks down his nose,

Speaking clearly and most severely,

Law is as I’ve told you before,

Law is as you know I suppose,

Law is but let me explain it once more,

Law is The Law.

—W. H. Auden
from “Law Like Love”

One of the oldest problems in the philosophy of law, and the problem with which most legal philosophy courses commonly begin, is the analysis of the concept of law itself. At the outset, this might strike the reader as puzzling. Why is this such a problem? Why does it matter? A chemistry course does not begin with a tortured discussion on “what is chemistry?” A history course does not usually begin with such a discussion of “what is history?” (given that we all know that history is just one damned thing after another), and so on for most other courses in a college or university catalog. What is there then about the concept of law that makes its analysis sufficiently difficult and important that it must precede all other issues in the philosophy of law?

This question is natural and sensible enough that it requires a careful answer. Probably the best general start toward an answer has been provided by the contemporary English legal philosopher H. L. A. Hart, who has noted certain features about law that make its analysis puzzling:¹

(1)Law is clearly a device for social control—a device for getting people to do things they would be unlikely to do if left to personal inclination alone. But how does a legal method of social control differ from other methods of social control with which the legal may easily be confused—e.g., morality or mere force? There is so much overlap in the language of morality and the language of the law (both talk of duty, rights, obligation, responsibility, etc.) that it would be easy to confuse the two. And yet, when we reflect and realize that it is possible for certain laws (e.g., clearly some of those of Nazi Germany) to require conduct that is immoral, we realize that law and morality are in some sense different even if closely related. Is one difference between law and morality perhaps that the former is necessarily backed up by force or the threat of force and the latter is not?

Force is so obviously a large part of every legal system that some identification of law with force might be tempting. But further reflection again shows that such a simple identification would be misleading. Once we move from the domain of criminal law, it is difficult to support the claim that law must involve force. There may, for example, be force present in the laws detailing procedures for making a valid will, but its presence is certainly not obvious. Also, certain instances of force (e.g., a gunman putting a pistol to your head and demanding your money or your life) are clearly not legal in nature. Thus force, though perhaps intimately related to law, cannot be identified with law. What, then, are the relations between the concepts “force,” “morality,” and “law” if not relations of identity? The vividness of this question provides one reason why the concept of law requires analysis.

(2) The concept of law may be used ambiguously and may thus cause serious moral and intellectual confusion. Sometimes, when people speak of laws, they are speaking of descriptive laws—statements of how things, as a matter of fact, regularly do happen. The so-called “law of gravity” is an example of a descriptive law. Other times, when people speak of laws, they are clearly speaking of prescriptive laws—authoritative statements about what should or ought to happen or about what should or ought to be permitted to happen. The First Amendment to the United States Constitution (“Congress shall make no law respecting an establishment of religion …”) is clearly a prescriptive law concerning the enactment of other prescriptive laws. It is not a statement of what Congress has in fact done or a prediction of what Congress will in fact do. It is rather a statement of what Congress, in enacting other prescriptive laws, is permitted and not permitted to do. These sorts of laws and legal systems, prescriptive laws and systems of prescriptive laws, are the object of study in the philosophy of law. Descriptive laws are examined in the philosophy of science.

As clear as the distinction between descriptive laws and prescriptive laws is, the two senses of “law” are still sometimes confused. Some people, for example, are inclined morally to condemn certain sexual practices (e.g., oral or anal copulation) as “contrary to the laws of nature” or simply “unnatural” in order to support their belief that these practices are evil and should be punished by the criminal law. But when they speak here of “contrary to natural law,” what in the world can they possibly mean by this phrase? Surely they do not mean that such acts cannot happen, that such sexual acts are like acts of changing water into wine, contrary to descriptive laws of nature in the sense that their occurrence would be a miracle. Does “contrary to laws of nature” then mean “statistically infrequent”? If so, then the claim is clearly descriptive and one can draw no moral or other evaluative or prescriptive conclusion from it. (Artistic creativity and genius are statistically infrequent. Does that make expression of these traits immoral?) If “contrary to nature” means “not in accord with dominant biological function,” then gourmets (those who sometimes eat purely for pleasure) would seem to merit our moral condemnation—a very counterintuitive claim. Suppose then that these persons mean something prescriptive when they say “laws of nature.” We might then well ask them what authority prescribes to nature; is there perhaps a cosmic legislature? If, as is most likely the case, these people really mean by “contrary to nature” something like “contrary to my religion’s interpretation of God’s commands,” then they should simply say this, avoid all the confusing and ambiguous references to laws of nature, and face the resulting problems honestly and squarely—one of the problems in our system being the First Amendment’s ban on an establishment of religion.

Not all linkings between descriptive and prescriptive law, however, are as confused as the one noted above. Consider the following problem: Would we say that a certain document—a written constitution perhaps—was really the prescriptive law of the land if nobody ever in fact obeyed it or paid it even the slightest bit of attention? Does not the claim that the United States Constitution is the highest prescriptive law of the land have something to do with the descriptive fact that this document is actually appealed to in deciding legal cases? If, starting tomorrow (because of a revolution perhaps), all citizens, legislators, government executives, and courts started ignoring the Constitution, would it still be the law of the land? At some point would we not be forced to say that it was at most former or previous law?

Legality is not to be simply identified with descriptive regularity any more than it is to be simply identified with morality or force. As these questions clearly show, however, it must have some important relationship with such regularity. An analysis of the concept of law will perhaps illuminate what this relationship is.

(3) The concept of law strikes up against certain puzzling but important borderline cases—cases of practices or institutions that have enough features in common with clear cases of law to tempt us to regard them as law but enough dissimilar features to tempt us in the other direction as well. Is international law really law? Is primitive law really law? Some writers who have been inclined to answer no have raised this challenging question: If these practices really are legal (rather than simply quasilegal or prelegal), then where are the legislative bodies to enact their laws, the courts to authoritatively interpret them, and sanctioning bodies to back them up with force? Let us suppose for a moment that these features are indeed absent. Until we first determine the relations of the concepts of legislation, court, and sanction to the concept of law itself, we shall not be in a position to know to what extent, if any, an absence of these features will pose a problem to the classification of international law and primitive law as genuine instances of law.

The point here is not to guarantee the removal of international law and primitive law from the class of borderline cases of law, because they may genuinely be borderline cases. If so, their removal would be arbitrary conceptual legislation or stipulation and would simply achieve, not clarity, but what Hart has called “uniformity at the price of distortion.” The point is really to understand precisely the nature of these cases—to determine, if they are borderline, exactly why they are borderline. Only an adequate analysis of the concept of law will allow us to do this.

(4) The final problem worth noting is the following: The concept of law, it will later be discovered, will require analysis in terms of elements that, in themselves, also raise interesting and important philosophical issues. At least some laws, for example, seem to involve, depend upon, or even be rules. But what is a rule and what does it mean to say of a rule that it exists? Rules are not material objects that can be seen, touched, and pointed to. We cannot hang our hats on them or eat our food off the top of them, and thus they clearly do not exist in the same way in which hatracks and tables exist. And yet there is some point in saying of some rules that they do exist, and of others that they do not. There really is a legal rule in our society prohibiting rape. And there really is not a legal rule in our society requiring attendance at church. But what does this talk of “exists” and “really is, really is not” actually come to with respect to such queer entities as laws and rules? We have here then a class of existence questions, and an adequate analysis of the concept of law will perhaps help us with these questions. We must know what law is, what kind of “thing” it is, before we shall be in a position to know what sense of “exists” applies to it.

We have now considered the main reasons that Hart gives in defense of his claim that the analysis of the concept of law is interesting, difficult, and necessary before proceeding to other questions in the philosophy of law. But in what sense, if any, is the analysis of the concept of law important? Hart’s four reasons alone, of course, demonstrate that an inquiry into the concept of law is philosophically important. But is this inquiry important in some more “practical” sense—some sense that would commend it to those motivated by concerns other than philosophical curiosity?

I think that the answer to this question is yes, and I would cite two considerations in defense of this answer. First, it is instructive to see how central an understanding of law is to some very profound moral and political concerns. We are, for example, inclined to criticize and perhaps fight states (e.g., Nazi Germany) that depart substantially from our ideal of the “rule of law,” and we often like to praise our own system by reciting, even if without full understanding, the venerable slogan that we live under “a government of laws and not of men.” Indeed, most of us feel, whether reasonably or not, that we owe some kind of moral duty or allegiance to the law or to our own legal system, and we often call on ourselves and others to respect and obey the law of the land even when we or they do not wholeheartedly approve of what that law requires in a particular case. In short, for most of us the claim “because it is the law” carries some moral force—disobedience being regarded as morally serious (requiring moral justification) and not simply as unwise or imprudent.

We cannot, of course, even understand this claim of moral allegiance to law until we understand the concept of law itself, and, given that rational evaluation presupposes understanding, we cannot evaluate the claims for moral fidelity to law in the absence of such analysis. If, for example, law is simply to be identified with mere force, then it would be hard to mount a persuasive case for a moral obligation to obey the law. I may fear and understandably obey the thug holding a gun to my head, but the thug surely has no moral claim on my obedience. These considerations of moral fidelity and allegiance are surely provocative enough to demonstrate the importance of analyzing the concept of law even to those (their numbers are legion) who do not see philosophical clarity as a good for its own sake.

A second (and related) practical reason for being concerned with an analysis of the concept of law is more strictly legal in nature. When, in an everyday context, we seek to have “the law” applied to a controversy in which we are involved, what exactly are we seeking? Those who are naive about the nature of law are inclined to think that it is easy to discover the law that applies to any particular case: one just looks it up in a statute book or pays a lawyer to look it up. In reality, however, the process of discovering the law is often not so simple. Perhaps the statute is vague—e.g., it prohibits driving a vehicle while intoxicated and you, cited for being intoxicated while pedaling your bicycle, believe that the statute does not really cover your action (you believe that a bicycle is not a vehicle). When the court agrees with you and holds that a bicycle is not a vehicle for purposes of this statute,² even though in an earlier case it had held that a moped with its engine off is a vehicle,³ what is actually going on? Is the court really applying a law to new cases or is it simply making it up as it goes along, legislating rather than judging?

If interpreting a simple statute can raise problems about the nature of law, imagine how these problems can be compounded in other more complex sorts of cases. Some cases are only loosely governed by statute or not governed by statute at all. In a common law system such as ours, applying “the law” to a particular case often means, not applying a statute, but rather a present judge applying to the present case the rulings (called “precedents”) of previous judges in earlier cases. Since these earlier cases are rarely exactly like the present case, however, the judge will have to depend on analogies, a process that at least seems to leave a great deal of free play for the judge’s discretion. Sometimes the decision, though defended by analogy with the past, will transform the law for the future, as when Justice Cardozo, for the first time, interpreted precedents so that automobile manufacturers could be held liable for injuries caused to the driving public by negligent manufacture of their product.⁴ What does it mean to talk about “the law” here—was it something Cardozo discovered and applied or did he just invent it, using the talk about precedents simply as a rationalization? Or consider controversial constitutional cases—e.g., the Supreme Court finding that the right to privacy, though never mentioned in the Constitution, is a fundamental constitutional right and then holding that this right encompasses the right of a woman to choose an abortion.⁵ The more we consider cases such as these, the more puzzled we become. We started off thinking that, as practical persons, we need only be concerned with the law—i.e., with the particular laws that apply to our daily lives. When the issues become even remotely complex, however, we soon discover that the law is not so easily determined, and we might at this point begin to find our slogan “a government of laws and not of men” less and less clear. Unless we want simply to adopt the cynical view that the whole legal process is nothing more than a con game, we shall want to distinguish, even in those cases of unpredictable outcome where great discretion seems to be allowed, a judge’s being guided by consideration of factors that are clearly nonlegal (e.g., bribes, coin flips, etc.) in contrast to being guided by considerations that, however vague and imprecise they may be, have a proper place in the legal process. But how could we possibly draw this distinction without an examination of the concept of law itself, without an inquiry into the question of what makes a process a legal process in the first place?

Having defended the enterprise of analyzing the concept of law, we are now in a position to begin the ente...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Contents
• List of Figures
• Dedication
• Dedication
• Preface
• Acknowledgments
• A Note on the Revised Edition
• Introduction: What Is the Philosophy of Law?
• 1 The Nature of Law
• 2 Moral Theory and Its Application to Law
• 3 Crime and Punishment
• 4 Philosophy and the Private Law
• 5 Law and Economics
• Table of Cases Cited
• Index