Justice as Friendship

A Theory of Law

Seow Hon Tan

• Publisher: Routledge
• Year: 2016
• ISBN:
  9781317109778
• Edition: 1
• Topic: Derecho
• Subtopic: Jurisprudencia

This book explores the question of justification of law. It examines some perennial jurisprudential debates and suggests that law must find its justification in morality. Drawing upon the Aristotelian inspiration that friends have no need for justice - in (ideal) friendship, we behave justly - Seow Hon Tan develops a theory of law based on the universal phenomenon of friendship. Friendships and legal relations attract rights and obligations by virtue of the manner in which parties are situated. Friendship teaches us that how parties are situated gives rise to legitimate expectations; it attests to the intrinsic worth of each person. The methodology for deciphering norms within, and moral lessons from, friendship can be transposed to law, resulting in an inter-subjectively agreeable and rich conception of justice. In determining the content of legal rights and obligations, we can and should draw upon such determination in friendship. Justice as Friendship aims to provide a vision for law's development and invites the practitioner to advance its central claims in their area of expertise. In dealing with selected legal doctrines, the book draws upon illustrative cases from the United States, the United Kingdom, and the Commonwealth. The book traverses the fields of jurisprudence, philosophy, ethics, political theory, contract law, and tort law.

PART
The Problems in Jurisprudence

Chapter 1
The Problem of Justification

Everyone, of course, is pleased with speeches that accord with his own way of looking at things and annoyed with a foreign point of view.

Socrates¹

Every theory of law is built upon a set of presuppositions, whether the legal philosopher is aware of them or not. These presuppositions are fundamental ideas about law as a normative enterprise—law’s purposes; its functions; its legitimacy; its content; and how law interacts with other social phenomena such as morality, politics, and the like. If the philosopher lives an examined life,² this set of presuppositions about law would cohere with their comprehensive doctrine³ or worldview⁴—the set of presuppositions about the world they live in and their role in it. There is no neutral view of the normative enterprise of law—not if neutrality connotes independence from a worldview.

In view of the different and often conflicting worldviews of individuals in a pluralistic world, each legal philosopher has a basic difficulty of convincing their counterpart from another school that their theory gives a satisfactory account of what law is and how it is justified. Indeed, the debate over the concept of law is more fundamental than the preceding statement suggests. Whether a theory of law must give an account of how law is justified is itself a point of contention. The opposing views—that a theory of law must justify law and that it need not do so—are themselves in need of justification. The latter sense of justification pertains to the adequacy of the theory as a theory of law: is an empirically accurate description or prediction of what an adjudicatory authority regards as law an adequate account of law, or must a theory also explain the normative force of, or justify, laws?⁵ After all, what should an adjudicatory authority have in mind when deciding what counts as law? Is it possible to describe law without engaging in questions about its proper justification? Analytical jurisprudence and American legal realism, for example, are theories that purport to be descriptive. Analytical jurisprudence treats the question of what law is as distinct from the question of what it ought to be. Only when law is identified as such can one criticize it from the perspective of one’s morality or political view. To refuse to regard certain rules as law on the ground of their moral offensiveness even though they exhibit other characteristics of law is regarded as unprofitable for the theoretical study of law.⁶ American legal realism advocates the temporary division of the “is” and the “ought” for purposes of study, with the result that it has sometimes been caricatured as the “bad man view of law”: the crook is interested in the prophecies of what the courts do, nothing more.⁷ Karl Llewellyn admits that a judgment of value must be made in order to set the objectives for inquiry, but during the inquiry into the “is,” the observation, description, and establishment of relations between things described are to remain as largely as possible uncontaminated by desires of the observer or their ethics.⁸ As for what happens after the inquiry into the “is,” it is unclear if the original proponents of American legal realism, such as Llewellyn and Jerome Frank, engage in a useful discussion of the “ought.”

Despite this bone of contention amongst legal philosophers, I suggest it is possible to conclude that a theory of law is a more adequate conception of law than its rivals. The arguments in this chapter are arguments about what makes an adequate conception of law. In the following three parts, I examine controversies that are different aspects of the disagreement over what makes an adequate conception of law.

The first part of this chapter addresses a manifestation of the controversy over descriptive and justificatory theories of law in the age-old debate between legal positivism and natural law theory. Legal positivism suggests that the question of what law is is separable from the question of what it ought to be, while natural law theory, in asserting a necessary connection between laws and morals, suggests that the two questions are inextricably linked. I shall argue, contrary to the claims of Hart that he provides an account of law that is descriptive rather than justificatory, that any description of law necessarily engages in questions about law’s justification in a manner that makes the theory justificatory, not merely descriptive. An adequate theory of law must therefore consider the justification of law. Should one not be persuaded, however, one can move on to the normative account of law propounded in subsequent chapters, treating this work as a theory which attempts to justify law, and assess whether it is persuasive on such terms—that is, as a justificatory theory.

If a theory of law must provide a justificatory account of law, a second point of contention pertains to how law may be justified. There are two main groups of contending views relating to the justification of law at a general level: that law should be a minimal regulatory framework that respects the autonomy of each individual to pursue their conception of the good life, on the one hand, and that law should be based upon the common good, a substantive vision of the good life, or moral values, on the other hand. In the first group is Rawls who argues for what has been called the priority of the right over the good. The second part of this chapter explains why the theory of law propounded in this book rejects the idea of the priority of the right over the good. While the attempt to separate the good from the right stems from the desire to found a legal system and law upon values which all can agree upon, any attempt at such separation is fraught with difficulties. This realization does not incapacitate us, because the theory propounded in this book will demonstrate that there are certain values that we can agree upon which are worth incorporating into a theory of justified law.

In the third part, in view of the peculiar challenge posed by the critical legal studies (“CLS”) school of thought that suggests that law is merely politics, I shall consider the plausibility and worth of a justificatory theory of law.

This chapter serves a limited purpose. In each controversy, while one view is advocated over another, this chapter does not claim to resolve age-old debates. The debates are introduced to suggest the fundamental nature of controversies in legal theory, which makes the existence of common grounds upon which we can build a theory of law all the more precious and necessary. I shall argue in the subsequent chapters that the common grounds in friendship are precious in a pluralistic world, and that the norms and methodology of friendship are useful in helping us to understand law.

The Debate between Legal Positivism and Natural Law Theory

The age-old debate between legal positivism and natural law theory concerns the connection between law and morality. At first blush, the debate seems to be at cross-purposes as legal positivism concerns what the law is, while natural law theory concerns what it ought to be. On closer analysis, both schools are interested in the question of what the law is.⁹

Legal positivists assert that there is no necessary connection between laws and morals. Austin writes that “[t]he existence of law is one thing; its merit or demerit is another.”¹⁰ Hart notes: “[I]t is in no sense a necessary truth that laws reproduce or satisfy certain demands of morality, though in fact they have often done so.”¹¹ Kelsen joins the legal positivists in suggesting that legal norms may have any kind of content.¹² Some legal positivists acknowledge a contingent connection between law and morality; for example, morals often influence the law, and a legal system that expects to command the respect of its subjects must rest upon the subjects’ sense of obligation or a conviction of its moral value.¹³ In addition to the separability thesis, the social fact thesis of legal positivism suggests that what law is is a question of social fact in each society. The archrival of legal positivism is natural law theory, which suggests that laws posited by human authorities must conform to universal principles that stem from an objective conception of human nature,¹⁴ God’s law,¹⁵ the law of reason, or morality.¹⁶ Natural law theory does not merely explicate what law ought to be; it is also a theory about what law is: law is what conforms to an objective law or to reason.¹⁷

Contrary to the avowed descriptive aims of the legal positivists such as Hart, I shall demonstrate that legal positivists fail to purely describe law, but end up with an account of law that is justificatory and prescriptive. Further, such an account is poor because, in its attempt to purely describe, it does not consider the proper justification of law, but ends up treating law as justified anyway. That said, an account of law that insists on the necessary connection between law and morality provides an adequate justification of law only if the reliance on morality is not arbitrary. Thus, non-positivistic or avowedly justificatory accounts of law must confront issues about the nature of morality. The chief opposition in this regard is Hume’s account of morality. Insofar as a moral realist’s account of morality competes on the same plane as the Humean account, the moral realist must persuade others in a pluralistic world that it is viable to rely on the norms to which laws are thought to be necessarily connected. These arguments set the stage for the introduction of the theory propounded in this book, which suggests that the universal phenomenon of friendship has a norm-generating potential that can be harnessed for law.

Purely Descriptive Accounts of Law?

Legal positivists claim that the questions of what law is and what law ought to be are separable, and a description of law can be undertaken without implicating any prescription. In the preface to THE CONCEPT OF LAW, Hart refers to his work as “an essay in descriptive sociology.” In the postscript, Hart writes:

My aim in this book was to provide a theory of what law is which is both general and descriptive … My account is descriptive in that it is morally neutral and has no justificatory aims: it does not seek to justify or commend on moral or other grounds the forms and structures which appear in my general account of law.¹⁸

Hart regards law as a system of rules, which are determined to be valid by a rule of recognition of the legal system. In England, for example, the rule of recognition suggests that whatever the Queen in Parliament enacts is the law. Legal validity is found as a matter of social practice, and does not hinge on conformity to morality or justice.¹⁹ The moral goodness of the rule of recognition can be critiqued by an observer, but its existence is a matter of fact, “shown in the way in which particular rules are identified, either by courts or other officials or private persons or their advisers.”²⁰ Such persons manifest what Hart calls the internal point of view—an acceptance of the rules in question as standards, displayed by criticism of those who deviate or threaten to deviate from them, demands for conformity, an ackn...