Legal Philosophy

Legal Theory Lexicon 065: The Nature of Law

The degree of dissonance in public opinion as regards the efficiency, or lack thereof, of the present administration has been growing by the day. From the most magnanimous of issues, like pandemic response, to the minutest, such as how the President has constantly picked up petty quarrels with the opposition by cursing them on nationally televised appearances, the general public has been at the brink of utter discord on how to accept the actions (even inactions) of the sitting administration.
 This divide in public opinion has only been heightened with the decision of Congress on 10 July 2020, after months of exhaustive and comprehensive hearings, to deny the grant of franchise to the multi-media and broadcast giant, ABSCBN, at a time when the surge of the pandemic is climbing at its summit. On the one hand, there are those who believe that this is simply an assertion of the supremacy of Philippine legal system in application and interpretation, given the perceived violations of ABS-CBN of some domestic laws and even the restrictions of their previous franchise; on the other hand, some construed this is nothing more than a stubborn flexing of the administration’s institutional muscles to bring down its opponents and suppress views that are adversarial to the government.
 And while ideally, the harmonization of both law and morality (or justice) ought to be the goal of every State, the differences in the interpretation of the concept of morality, as well as diversity in culture and tradition. This dilemma between law and justice, legality and morality, has been the subject of a long line of philosophical and sociological debates, as well as an amusing source of confusion in the varying (sometimes even conflicting) decisions of the Philippine courts in the interpretation and application of laws. Ultimately, the question boils down into the legitimacy of laws. 
 For this purpose, the researcher will focus on legal positivism from the perspective of John Austin to address the aforementioned dilemma.
 References
 Printed Materials
 Agabin, Pacifico. Mestizo: The Story of the Philippine Legal System. Diliman, Quezon City: Universityof the Philippines, 2011.
 Austin, John. The Province of Jurisprudence Determined. London, UK: John Edward Taylor, 1861.
 Bix, Brian. Natural Law Theory, A Companion to Philosophy of Law and Legal Theory, 2nd edition.Oxford, UK: Blackwell Publishing Ltd., 2010.
 Coleman, Jules and Leiter, Brian. Legal Positivism, A Companion to Philosophy of Law and Legal Theory, 2nd edition. Oxford, UK: Blackwell Publishing Ltd., 2010.
 Jones, W.T. A History of Western Philosophy: Hobbes to Hume, 2nd edition. San Diego, California: Harcourt Brace Jovanovich, Inc., 1969.
 Ruggiero, Vincent Ryan. Thinking Critically About Ethical Issues, 8th edition. New York, USA: The McGraw-Hill Companies, Inc., 2012.
 Internet Sources
 Chan Robles Virtual Law Library - www.chanrobles.com
 Internet Encyclopedia of Philosophy - www.iep.utm.edu
 Stanford Encyclopedia of Philosophy - www.plato.stanford.edu

Legal Teleology seeks to embrace and to ground the most plausible tenets of both legal positivism and natural law theory. It is compatible with the positivist view that law consists at root in a social practice of a certain kind. Yet it also can accommodate at least some claims about the relation between law and morality that are advocated by opponents of positivism. Most important, it argues that law is “robustly normative”—roughly, law is a source of genuine reasons. Standard forms of positivism cannot account for this thesis, but, arguably, the central doctrines of positivism are compatible with it. Legal Teleology is an account of the normativity of law that is supported by “pluralist-teleology,” a naturalist account of normativity that has been proposed elsewhere (Copp 2009). Legal Teleology sees the law as having a purpose, and it says that law is defective insofar as it does not further that purpose. It agrees that jurists can sometimes help law better to serve its purpose when they invoke moral principles in interpreting law. Legal Teleology represents a kind of intermarriage between legal positivism and natural law theory.

Specialists in international tax law tend to adopt a legal positivism perspective. Although not without merit, legal positivism alone offers an incomplete understanding of international tax law for the purposes of legal theory, law-making and practice. In comparing new legal realism with legal positivism, this article will demonstrate how analytical frameworks that incorporate a new legal realism approach can enhance our understanding of international tax law and its concepts, by viewing it through the real-world lens. It will also outline some issues for future empirical analysis that could help to advance legal positivism theory and connect law-making and the practice of international tax law to the real world.

The central text of contemporary natural law theory remains John Finnis's Natural Law and Natural Rights. In that respect, it is a field in need of reinvigoration. The comparison with legal positivism, natural law theory's modern counterpoint, is instructive. Although the paradigmatic positivist text is still H. L. A. Hart's The Concept of Law, Hart's theory has largely been superseded in current debates within positivism, most notably by the (arguably more philosophically sophisticated) writings of his erstwhile student, Joseph Raz. The current vibrancy of the positivist tradition owes much to this changing of the guard.Mark Murphy's recent book, Natural Law in Jurisprudence and Politics, provides perhaps the best hope yet for a similar development within natural law theory. Murphy's writing is clear, elegant and precise; in fewer than 200 pages, he covers the central questions confronting the natural law view, including the definition of law, the nature of the common good, the basis of political authority and the legitimacy of legal punishment. On each of these points Murphy clearly frames and contextualizes his position, systematically considers leading alternatives and carefully explains his positive argument. He is honest and clear-headed about shortcomings in and challenges to his theory, acknowledging openly where there is further work to be done.The book is rigorous and sophisticated without being overly technical; it represents the best in philosophical style. There is a great deal of interest here for specialists (for whom the work is primarily intended); however, the text would not be out of place as the basis for an advanced undergraduate course in the area, such is its clarity and breadth of coverage. Murphy's natural law view combines philosophical resourcefulness with a strong adherence to the core elements of the tradition. He draws significantly on key classical (Aristotle, Aquinas) and contemporary (Finnis) theorists; but his argument also exhibits considerable innovation — he departs significantly from all the above figures on key points.An overview of Murphy's natural law theory is provided in the following section 2. As I have indicated, there is much to admire in Murphy's argument; my main aim in this article, however, is to focus on my points of disagreement. These fall into three main areas: Murphy's rejection of Finnis's hermeneutic strategy for defining law (section 3); his views on the claims of law and the foundations of political authority (section 4); and his (qualified) defence of the common good principle against the challenge from the super-political (section 5). By considering these points, I hope to illustrate what Murphy's work has to offer as a focal point for future debates in natural law theory — as well as venturing my own modest contribution.

Is there a necessary connection between law and morality? Elizabeth Anscombe's theory of civil authority provides the basis for a unique intervention into this debate. Her distinction between the rights internal to a practice and the external justification of said practice avoids the traditional objections to both legal positivism and natural law theories.

Offences and Defences is an outstanding collection of eleven of John Gardner's previously published papers in the philosophy of criminal law. I briefly examine his views on five central issues: his claims about basic responsibility and whether it should be construed as relational; his positions on agent neutrality; his arguments about whether moral and criminal wrongs are typically strict; his thoughts about the structure of defences, and, finally, what his account of rape reveals about the content of the harm principle.

My purpose in this paper is to make a case for the strictly philosophical nature of our discipline, legal philosophy. I first take a prior stance on the issue of what philosophy is in general and outline some premises for the definition of philosophical rationality. This then leads me to critically examine Bobbio’s dichotomy between jurists’ legal philosophy and philosophers’ legal philosophy. It is essential to reformulate the relationships between legal philosophy as a “special” or “regional” discipline as opposed to “general” philosophy. So thirdly, I re-examine this problem using the distinction between concepts of law and ideas in law. Fourthly, I defend the thesis that, when ascertaining the type of philosophy the philosophy of law is, the most decisive factor is not so much (or not only) the relationship between philosophy of law and philosophy in general as, more importantly, the relationship between it and law itself. I argue that the nature of law itself makes its practice inevitably and ineluctably associated with philosophical ideas and conceptions. This practical view of law is tightly bound with a view of legal philosophy as a practical philosophy, and this is the main thesis I shall defend here. Different expressions of this practical view of law can be found in prominent contemporary authors who go beyond the dichotomy of legal positivism-natural law (such as Nino, Alexy, Dworkin, Atienza). The essential feature which I regard ties philosophy of law to the condition of some “practical philosophy” is the role played by the concept of value, i.e. the centrality and pre-eminence of its evaluative dimension.

As we have seen, the ideas of justice and injustice have a long history within legal theory. More particularly, having dealt with Aristotle’s theory of justice and having seen the importance of the idea of unjust laws to the Thomist theory of natural law (in Chapter 3), and having seen how the revival of interest in natural law theory during the latter part of the 20th century emphasizes its evaluative, rather than constitutive, function, we now return to the same theme. More particularly, this chapter will consider utilitarianism, the economic analysis of law, Rawls’ Theory of Justice and Political Liberalism and Nozick’s Anarchy, State and Utopia.

With a clear, engaging, and informal style, Understanding Jurisprudence is the perfect guide for students new to legal theory looking for a handy and stimulating starting point to this sometimes daunting subject. Key theories and theorists are introduced in a compact and practicable format, offering an accessible account of the central ideas without oversimplification. Further reading suggestions are included throughout, helping students to structure their research and navigate the jurisprudence’s extensive literature. Critical questions are also included in each chapter, to encourage students to think analytically about the law and legal theory, and the numerous debates that it generates. The author is an experienced teacher of jurisprudence and excels at providing a concise, student-friendly introduction to the subject, without avoiding the subtleties of this absorbing discipline. New to this, the book’s fifth edition, are: the most recent scholarship in several areas, including the social and political developments that have influenced the law and legal theory; expanded chapters on natural law, legal positivism, rights, and theories of justice; revised discussions of virtue ethics, human and animal rights, the economic analysis of law, and feminist theories; and updated suggested further reading lists and questions at the end of each chapter.

The paper analyzes references to the concept of natural law in the work of legal scholar Franz Bohm (1895–1977), one of the founders of German ordoliberalism and a pioneer in working at the intersection of law and economics. Bohm was particularly interested in the economic constitution, the framework of legal rules that shape economic transactions. It is shown that Bohm’s work on this subject relates to natural law in two distinct ways. Firstly, from classical political economy, he adopts the argument that there are patterns in human behavior that allow for the establishment of a self-organizing mechanism that governs economic activity, a social order “bestowed by nature” or “ordo”. Secondly, given the distinction in jurisprudence between legal positivists and natural law theorists, the paper argues that Bohm should be viewed as the latter because he maintains that legal norms need to correspond to justice in order to be valid law. Despite his status as a natural law theorist, Bohm contends that legal systems must not be derived from metaphysical sources.

Husak reprints 15 of his earlier essays in the philosophy of criminal law (and add two previously unpublished pieces) collected from philosophy journals, law reviews, and book chapters. These articles cover a broad range of topics about the nature of penal liability, criminal law culpability, defences, and the justification of punishment. Together, these essays present a desert-based analysis of issues in criminal theory that resist the consequentialist approach more familiar among legal scholars. The author's foremost concern is to ensure that the principles and doctrines of the criminal law preserve justice and do not sacrifice individuals for the common welfare. Although Husak draws equally from existing criminal law and contemporary moral and political philosophy, readers need neither a Ph.D. in philosophy nor a J.D. in law to understand and assess his essays.

Law and Morality: An Analytic Perspective

Mark Greenberg famously argued that conventional legal theories are based on an important shared error: that legislation directly contributes to the content of law. Greenberg points out that there is frequently a divergence between the semantic content of what lawmakers enact and any resulting change in the content of law. Greenberg used this observation and argument as the basis for rejecting conventional legal theories, in particular, legal positivism, and constructing his alternative approach, "the Moral Impact Theory of Law." While Greenberg is correct in observing a divergence between legislative communication and legal content, he is wrong in his diagnosis of the cause of this divergence. There is a simpler explanation for the divergence, and one that does not require rejecting (or, for that matter, accepting) legal positivism. The divergence between legal content and the communicating content of individual acts of legislation can be understood by focusing on law as a form of practical reasoning. The idea that practical reasoning is central to law is hardly new: it is an integral part of the legal positivist theory of Joseph Raz and the natural law theory of John Finnis, and can arguably be traced back to Thomas Aquinas, and perhaps beyond. This Chapter will revisit the importance of understanding law in terms of practical reasoning, and show how this focus can explain the divergence that troubled Greenberg, without requiring recourse to his Moral Impact Theory or any other substantial revisions to conventional jurisprudential thought.

The question of what makes a ‘law’ distinct from other kinds of rules and social norms – often called the project of ‘conceptual jurisprudence’ – gives rise to a classic debate in modern legal theory. The debate has historically centred on the competing Western views of (i) natural law theory and (ii) legal positivism. Meanwhile, the ancient Chinese school of thought known as ‘Legalism’ (法家) has remained an under-explored branch of Eastern philosophy, despite its many insights into the nature of government and legal systems. This paper argues that Legalism, when interpreted as a system of conceptual jurisprudence, offers a genuine alternative to both of the dominant Western theories. It achieves this by invoking normative reasoning to conceptually distinguish ‘laws’ from other sorts of rules at the most fundamental level of analysis, but also by doing so without any necessary reference to notions of morality. This unique characteristic of Legalism is introduced in this paper as ‘form prudentialism’.