Analytic and Normative Juris (Group 19)

Analytic JurisprudenceAnalytic Jurisprudence

Analytic Jurisprudence Analytic Jurisprudence

Natural Law TheoryNatural Law Theory Legal Positivism Legal Positivism

1.1. The Conventionality ThesisThe Conventionality Thesis

2.2. The Social Fact ThesisThe Social Fact Thesis

3.3. The Separability ThesisThe Separability Thesis Ronald Dworkin's Third Theory Ronald Dworkin's Third Theory

Analytic JurisprudenceAnalytic Jurisprudence

What is law?What is law? What are laws?What are laws? How does law relate to social power?How does law relate to social power? How does law relate to morality?How does law relate to morality?

Analytic JurisprudenceAnalytic Jurisprudence

descriptive statements rather than descriptive statements rather than prescriptive statementsprescriptive statements

describes law rather than prescribing describes law rather than prescribing itit

recognizes the difference between recognizes the difference between saying what is as opposed to saying saying what is as opposed to saying what ought to bewhat ought to be

Analytic JurisprudenceAnalytic Jurisprudence

Although many people have their Although many people have their own own philosophy of lawphilosophy of law, legal , legal positivism currently dominates the positivism currently dominates the field of analytic jurisprudence.field of analytic jurisprudence.

Legal positivism asserts that the Legal positivism asserts that the validity of a law depends on whether validity of a law depends on whether or not a recognized authority posited or not a recognized authority posited it in the proper manner, regardless of it in the proper manner, regardless of any moral implications.any moral implications.

Analytic JurisprudenceAnalytic Jurisprudence

John Austin - analytic jurisprudence John Austin - analytic jurisprudence seeks "the essence or nature which seeks "the essence or nature which is common to all laws that are is common to all laws that are properly so called" properly so called"

Brian Leiter - philosophy of law is one Brian Leiter - philosophy of law is one of the few philosophical disciplines of the few philosophical disciplines that take conceptual analysis as its that take conceptual analysis as its principal concern principal concern

Ronald Dworkin - third theory partly - Ronald Dworkin - third theory partly - it is not clear where he stands on the it is not clear where he stands on the question of whether there is a question of whether there is a conceptual relation between law and conceptual relation between law and morality morality

Natural Law Theory Natural Law Theory

there is a necessary relation between there is a necessary relation between the concepts of law and morality the concepts of law and morality

the concept of law cannot be fully the concept of law cannot be fully articulated without some reference articulated without some reference to moral notions to moral notions

Blackstone - "This law of nature, being co-Blackstone - "This law of nature, being co-eval with mankind and dictated by God eval with mankind and dictated by God himself, is of course superior in obligation himself, is of course superior in obligation to any other. It is binding over all the to any other. It is binding over all the globe, in all countries, and at all times: no globe, in all countries, and at all times: no human laws are of any validity, if contrary human laws are of any validity, if contrary to this; and such of them as are valid to this; and such of them as are valid derive all their force, and all their derive all their force, and all their authority, mediately or immediately, from authority, mediately or immediately, from this original" this original"

John Finnis - "the principles of natural John Finnis - "the principles of natural law explain the obligatory force (in law explain the obligatory force (in the fullest sense of 'obligation') of the fullest sense of 'obligation') of positive laws, even when those laws positive laws, even when those laws cannot be deduced from those cannot be deduced from those principles" principles"

Lon Fuller - law is necessarily subject to a Lon Fuller - law is necessarily subject to a proceduralprocedural morality consisting of eight morality consisting of eight principles:principles:• (P1) the rules must be expressed in general terms;(P1) the rules must be expressed in general terms;• (P2) the rules must be publicly promulgated;(P2) the rules must be publicly promulgated;• (P3) the rules must be prospective in effect;(P3) the rules must be prospective in effect;• (P4) the rules must be expressed in understandable terms;(P4) the rules must be expressed in understandable terms;• (P5) the rules must be consistent with one another;(P5) the rules must be consistent with one another;• (P6) the rules must not require conduct beyond the powers of (P6) the rules must not require conduct beyond the powers of

the affected parties;the affected parties;• (P7) the rules must not be changed so frequently that the (P7) the rules must not be changed so frequently that the

subject cannot rely on them; andsubject cannot rely on them; and• (P8) the rules must be administered in a manner consistent (P8) the rules must be administered in a manner consistent

with their wording. with their wording.

Legal Positivism Legal Positivism The Social Fact Thesis (which is also known as the The Social Fact Thesis (which is also known as the

Pedigree Thesis) asserts that it is a necessary Pedigree Thesis) asserts that it is a necessary truth that legal validity is ultimately a function of truth that legal validity is ultimately a function of certain kinds of social facts. certain kinds of social facts.

The Conventionality Thesis emphasizes law's The Conventionality Thesis emphasizes law's conventional nature, claiming that the social facts conventional nature, claiming that the social facts giving rise to legal validity are authoritative in giving rise to legal validity are authoritative in virtue of some kind of social convention. virtue of some kind of social convention.

The Separability Thesis, at the most general level, The Separability Thesis, at the most general level, simply denies naturalism's Overlap Thesis simply denies naturalism's Overlap Thesis

The Conventionality Thesis The Conventionality Thesis it is a conceptual truth about law that legal it is a conceptual truth about law that legal

validity can ultimately be explained in terms of validity can ultimately be explained in terms of criteria that are authoritative in virtue of some criteria that are authoritative in virtue of some kind of social convention. kind of social convention.

H.L.A. Hart - the criteria of legal validity are H.L.A. Hart - the criteria of legal validity are contained in a rule of recognition that sets forth contained in a rule of recognition that sets forth rules for creating, changing, and adjudicating law rules for creating, changing, and adjudicating law

Joseph Raz - the validity criteria are authoritative Joseph Raz - the validity criteria are authoritative only in virtue of a convention among officials. only in virtue of a convention among officials.

The Social Fact Thesis The Social Fact Thesis legal validity is a function of certain social legal validity is a function of certain social

facts facts

John Austin - a rule R is legally valid in a John Austin - a rule R is legally valid in a society S if and only if R is commanded by society S if and only if R is commanded by the sovereign in S and is backed up with the sovereign in S and is backed up with the threat of a sanction. the threat of a sanction.

Hart - a proposition P is legally valid in a Hart - a proposition P is legally valid in a society S if and only if it satisfies the society S if and only if it satisfies the criteria of validity contained in a rule of criteria of validity contained in a rule of recognition that is binding in S. recognition that is binding in S.

The Separability Thesis The Separability Thesis

law and morality are conceptually distinctlaw and morality are conceptually distinct

Klaus F¸þer - making a meta-level claim Klaus F¸þer - making a meta-level claim that the definition of law must be entirely that the definition of law must be entirely free of moral notions free of moral notions

Hart - no more than the "simple contention Hart - no more than the "simple contention that it is in no sense a necessary truth that that it is in no sense a necessary truth that laws reproduce or satisfy certain demands laws reproduce or satisfy certain demands of morality, though in fact they have often of morality, though in fact they have often done so" done so"

conflicting views conflicting views

inclusive positivism - it is possible for inclusive positivism - it is possible for a society's rule of recognition to a society's rule of recognition to incorporate moral constraints on the incorporate moral constraints on the content of law content of law

exclusive positivism - denies that a exclusive positivism - denies that a legal system can incorporate moral legal system can incorporate moral constraints on legal validity constraints on legal validity

Ronald Dworkin's Third Theory Ronald Dworkin's Third Theory

"if we treat principles as law we must "if we treat principles as law we must reject the positivists' first tenet, that reject the positivists' first tenet, that the law of a community is the law of a community is distinguished from other social distinguished from other social standards by some test in the form of standards by some test in the form of a master rule" a master rule"

the legal authority of a binding principle the legal authority of a binding principle derives from the contribution it makes to derives from the contribution it makes to the best moral justification for a society's the best moral justification for a society's legal practices considered as a whole. legal practices considered as a whole. • (1) the principle coheres with existing legal (1) the principle coheres with existing legal

materials; andmaterials; and• (2) the principle is the most morally attractive (2) the principle is the most morally attractive

standard that satisfies (1).standard that satisfies (1). The correct legal principle is the one that The correct legal principle is the one that

makes the law the moral best it can be. makes the law the moral best it can be.

"constructive interpretation is a "constructive interpretation is a matter of imposing purpose on an matter of imposing purpose on an object or practice in order to make of object or practice in order to make of it the best possible example of the it the best possible example of the form or genre to which it is taken to form or genre to which it is taken to belong" belong"

no firm line divides jurisprudence no firm line divides jurisprudence from adjudication or any other aspect from adjudication or any other aspect of legal practice of legal practice

Normative Normative JurisprudenceJurisprudence

Normative Jurisprudence Normative Jurisprudence

Freedom and the Limits of Freedom and the Limits of Legitimate LawLegitimate Law

1.1. Legal MoralismLegal Moralism

2.2. Legal Paternalism Legal Paternalism

3.3. The Offense Principle The Offense Principle The Obligation to Obey Law The Obligation to Obey Law The Justification of PunishmentThe Justification of Punishment

Normative JurisprudenceNormative Jurisprudence What is the proper function of law?What is the proper function of law? What is the intention of law?What is the intention of law? What political and moral beliefs act as a What political and moral beliefs act as a

basis for law?basis for law? What types of actions ought to be subject What types of actions ought to be subject

to punishment?to punishment? How should people be punished?How should people be punished? What is just and unjust?What is just and unjust? What is the value of law?What is the value of law? Do people have a responsibility to obey Do people have a responsibility to obey

law?law?

Normative JurisprudenceNormative Jurisprudence

attempts to make prescriptive attempts to make prescriptive statements about lawstatements about law

coincides with political philosophy coincides with political philosophy and moral philosophyand moral philosophy

Freedom and the Limits of Freedom and the Limits of Legitimate Law Legitimate Law

Laws limit human autonomy by restricting Laws limit human autonomy by restricting freedom freedom

John Stuart Mill - harm principle - “The sole end John Stuart Mill - harm principle - “The sole end for which mankind are warranted, individually or for which mankind are warranted, individually or collectively, in interfering with the liberty of collectively, in interfering with the liberty of action of any of their number is self-protection. action of any of their number is self-protection. The only purpose for which power can rightfully The only purpose for which power can rightfully be exercised over any member of a civilized be exercised over any member of a civilized community against his will is to prevent harm to community against his will is to prevent harm to others. His own good, either physical or moral, is others. His own good, either physical or moral, is not a sufficient warrant. Over himself, over his not a sufficient warrant. Over himself, over his own body and mind, the individual is sovereign" own body and mind, the individual is sovereign"

Legal Moralism Legal Moralism

law can legitimately be used to law can legitimately be used to prohibit behaviors that conflict with prohibit behaviors that conflict with society's collective moral judgments society's collective moral judgments even when those behaviors do not even when those behaviors do not result in physical or psychological result in physical or psychological harm to others harm to others

implies that it is permissible for the implies that it is permissible for the state to use its coercive power to state to use its coercive power to enforce society's collective morality. enforce society's collective morality.

Legal Paternalism Legal Paternalism

it is permissible for the state to legislate it is permissible for the state to legislate against what Mill calls self-regarding against what Mill calls self-regarding actions when necessary to prevent actions when necessary to prevent individuals from inflicting physical or individuals from inflicting physical or severe emotional harm on severe emotional harm on themselvesthemselves

interference with a person's liberty of interference with a person's liberty of action justified by reasons referring action justified by reasons referring exclusively to the welfare, good, exclusively to the welfare, good, happiness, needs, interests or values of happiness, needs, interests or values of the person being coerced the person being coerced

The Offense Principle The Offense Principle "It is always a good reason in support of a "It is always a good reason in support of a

proposed criminal prohibition that it would proposed criminal prohibition that it would probably be an effective way of preventing probably be an effective way of preventing serious offense (as opposed to injury or harm) to serious offense (as opposed to injury or harm) to persons other than the actor, and that it is persons other than the actor, and that it is probably a necessary means to that end" probably a necessary means to that end"

Offense - intends a subjective and objective Offense - intends a subjective and objective element: the subjective element consists in the element: the subjective element consists in the experience of an unpleasant mental state (e.g., experience of an unpleasant mental state (e.g., shame, disgust, anxiety, embarrassment); the shame, disgust, anxiety, embarrassment); the objective element consists in the existence of a objective element consists in the existence of a wrongful cause of such a mental state. wrongful cause of such a mental state.

The Obligation to Obey Law The Obligation to Obey Law

if what is essential to law is just that if what is essential to law is just that there exist specified recipes for there exist specified recipes for making law, then there cannot be a making law, then there cannot be a moral obligation to obey a rule moral obligation to obey a rule simply because it is the lawsimply because it is the law. .

The Justification of Punishment The Justification of Punishment (1)(1) retributive;retributive;

what justifies punishing a person is that she committed an offense what justifies punishing a person is that she committed an offense that deserves the punishment that deserves the punishment

(2)(2) deterrence; deterrence; punishment of a wrongdoer is justified by the socially beneficial punishment of a wrongdoer is justified by the socially beneficial

effects that it has on other persons effects that it has on other persons (3)(3) preventive;preventive;

incarcerating a person for wrongful acts is justified insofar as it incarcerating a person for wrongful acts is justified insofar as it prevents that person from committing wrongful acts against society prevents that person from committing wrongful acts against society during the period of incarceration during the period of incarceration

(4)(4) rehabilitative;rehabilitative; punishment is justified in virtue of the effect that it has on the moral punishment is justified in virtue of the effect that it has on the moral

character of the offender character of the offender (5)(5) restitutionary;restitutionary;

the principal purpose of punishment must be to make the victim the principal purpose of punishment must be to make the victim whole to the extent that this can be done: "The point is not that the whole to the extent that this can be done: "The point is not that the offender deserves to suffer; it is rather that the offended party offender deserves to suffer; it is rather that the offended party desires compensation" desires compensation"

Critical Theories of LawCritical Theories of Law Legal RealismLegal Realism

• (1) the class of available legal materials is (1) the class of available legal materials is insufficient to logically entail a unique legal insufficient to logically entail a unique legal outcome in most cases worth litigating at the outcome in most cases worth litigating at the appellate level (the Local Indeterminacy appellate level (the Local Indeterminacy Thesis);Thesis);

• (2) in such cases, judges make new law in (2) in such cases, judges make new law in deciding legal disputes through the exercise of deciding legal disputes through the exercise of a lawmaking discretion (the Discretion Thesis); a lawmaking discretion (the Discretion Thesis); andand

• (3) judicial decisions in indeterminate cases (3) judicial decisions in indeterminate cases are influenced by the judge's political and are influenced by the judge's political and moral convictions-and not by legal moral convictions-and not by legal considerations considerations

Critical Legal StudiesCritical Legal Studies• attempts to expand the radical aspects attempts to expand the radical aspects

of legal realism into a Marxist critique of of legal realism into a Marxist critique of mainstream liberal jurisprudence mainstream liberal jurisprudence

Law and Economics Law and Economics • the value of economic analysis in the the value of economic analysis in the

law both as a description about how law both as a description about how courts and legislators do behave and as courts and legislators do behave and as a prescription for how such officials a prescription for how such officials should behave should behave

Outsider JurisprudenceOutsider Jurisprudence• concerned with providing an analysis of concerned with providing an analysis of

the ways in which law is structured to the ways in which law is structured to promote the interests of white males promote the interests of white males and to exclude females and persons of and to exclude females and persons of color color