Wednesday, August 02, 2006

Moral as part of Law

There are some who assert that even if law and morals are distinguishable it remains true that morality is in some way an integral part of law or of legal development, that morality is "secreted in the interstices" of the legal system, and to that extent is inseparable from it.

Thus it has been said that law in action is not a mere system of rules, but involves the use of certain principles, such as that of the equitable and the good (aequum et bonum). By the skilled application of these principles to legal rules the judicial process distills a moral content out of the legal order, though it is admitted that this does not permit the rules themselves to be rejected on the general found of their immorality.

Another approach would go much further and confer upon the legal process an inherent power to reject immoral rules as essentially non-legal; this seems to resemble the classical natural law mode of thought, but it is urged, the difference is that according to the present doctrine it is a matter of the internal structure of the legal system, which treats immoral rules as inadmissible rather than as being annulled by an external law of nature.

If value judgments such as moral factors, form an inevitable feature of the climate of legal development, as in generally admitted, it is difficult to see the justification for this exclusive attitude.

Value judgment which enter into law will require consideration of what would be a just rule or decision, even though not objective in the sense of being based on absolute truth, may, nevertheless, be relatively true, in the sense of corresponding to the existing moral standards of the community.

Whether it is convenient or not to define law without reference to subjective factors, when we come to observe the phenomena with which law is concerned and to analyse the meaning and use of legal rules in relation to such phenomena, it will be found impossible to disregard the role of value judgments in legal activity, and we cannot exercise this functional role by stigmatising such judgments as merely subjective or unscientific.

Abstract from MDA Freeman, Introduction To Jurisprudence- Meaning of Law; 7th Ed. 2004

The Problem about the Nature of Law
J.Raz (1982)

The theory of knowledge attempts to clarify the nature of knowledge, the philosophy of logic examines the definition of logic, moral philosophy reflects on the nature and boundaries of morality and so on.

One finds philosophers who took the enquiry concerning the nature of law to be an attempt to define the meaning of the word "law". Traditionally those who adopted the linguistic approach concentrated on the word "law". However, it encountered the overwhelming problem that that word is used in a multiplicity of non-legal contexts. We have laws of nature and scientific laws, laws of God and thought, of logic and of language, etc. Clearly the explanation of "law" has to account for its use in all these contexts and equally clearly any explanation which is so wide and general can be of very little use to legal philosophers.

Only one assumption can the explanation of "law" hope to provide the answer to the legal philosopher's inquiry into the nature of law. That assumption is that the use of "law" in all its contexts but one is analogical or metaphorical or in some other way parasitical on its core meaning as displayed in its use in one type of context and that that core meaning is the one the legal philosopher has at the centre of his enquiry. Unfortunately, the assumption is mistaken. Its implausibility is best seen by examining the most thorough and systemic attempt to provide an analysis of "law" based on this assumption, that proposed by John Austin in The Province of Jurisprudence Determined.

The Lawyers' Perspective

Many legal philosophers start from an unstated basic intuition:

"The law has to do with those considerations which it is appropriate for the courts to rely upon in justifying their decisions."

Most theorists tend to be by education and profession lawyers and their audience often consists primarily of law students. Quite naturally and imperceptibly they adopted the lawyers' perspective on the law. Lawyers' activities are dominated by litigation in court, actual or potential. They not only conduct litigation in the courts. They draft documents, conclude legal transactions, advise clients, etc., always with an eye to the likely outcome of possible litigation in which the validity of the document or transaction or the legality of the client's action may be called into question. From the lawyer's point of view the law does indeed consist of nothing but considerations appropriate for courts to rely upon.

Hans Kelsen says he follows a combination of the linguistic approach and the institutional approach: "Any attempt to define a concept in question. In defining the concept of law we must begin by examining the following questions:

Do the social phenomena generally called law present a common characteristic distinguishing them from other social phenomena of a similar kind?

The clue to the methodological approach Kelsen was in fact pursuing is in his insistence that legal theory must be a pure theory. Kelsen regarded it as doubly pure. It is pure of all moral argument and it is pure of all sociological facts. Kelsen indicates his belief that the analysis of legal concepts and the determination of the content of any legal system depends in no way at all on the effects the law has on the society or the economy, nor does it involve examination of people's motivation in obeying the law or in breaking it.

For Kelsen, it is self-evident that legal theory is free of all moral considerations. The task of legal theory is clearly to study law. If law is such that it cannot be studied scientifically then surely the conclusion that if the law does involve moral considerations and therefore cannot be studied scientifically, then legal theory will study only those aspects of the law which can be studied scientifically.

Since Kelsen has no good reason to insist that legal theory should be free from moral consideration, he has no good reason to delimit the law in the way he does.

The Institutional Approach

It is the lawyer's perspective which delivers the verdict. Yet there is something inherently implausible in adopting the lawyer's perspective as one fundamental methodological stance. There is no doubting the importance of the legal profession and of the judicial system in society. It is however, unreasonable to study such institutions exclusively from the lawyer's perspective.

Institutional approach seems much superior to its rivals. The institutional approach strives to present an analysis of a central political institution should be accepted as the analysis of law. From the institutional point of view, the basic intuition is the starting point for further critical reflection. It is entirely plausible to regard the notion of law as bound up with that of a judicial system but what are the essential characteristics of a court and why are they important to the political organization of society? Three features characterize courts of law:

  1. They deal with disputes with the aim of resolving them.
  2. They issue authoritative rulings which decides these disputes.
  3. In their activities they are bound to be guided, at least partly, by positivist authoritative consideration.
At the highest level of philosophical abstraction the doctrine of the nature of law can and should be concerned with explaining law within the wider context of social and political institutions. It shows how the inclination to identify the theory of law with a theory of adjudication and legal considerations with all those appropriate for courts is based on a short sighted doctrine overlooking the connection of law with the distinction between executive and deliberative conclusion. Clearly, a theory of adjudication is a moral theory. It concerns all the considerations affecting reasoning in the courts, both legal and non-legal.

When the doctrine of the nature of law is identified with a theory of adjudication it becomes itself a moral theory. The doctrine of the nature of law yields a test for identifying law the use of which requires no resort to moral or any other evaluative argument. But it does not follow that one can defend the doctrine of the nature of law itself without using evaluative arguments. Its justification is tied to an evaluative judgment about the relative importance of various features of social organizations and these reflect our moral and intellectual interest and concerns.


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