Philosophy of Law
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Analytical Jurisprudence and Contingency
To help keep Philosophy Bites free, please donate via the Paypal buttons in the lefthand column of our weblog www. Reblog 0. We have a right not to be tortured, a human right. But what does that mean? Is this simply a legal right? What is the relationship between human rights and morality?
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Listen to John Tasioulas on Human Rights. Read a range of John Tasioulas' work on rights on academia. What are constitutions? For this reason, he regards his project as "a radically different enterprise from Dworkin's conception of legal theory or 'jurisprudence' as he often terms it as in part evaluative and justificatory and as 'addressed to a particular legal culture', which is usually the theorist's own and in Dworkin's case is that of Anglo-American law" Hart , p.
These remarks show Hart believes Dworkin's theoretical objectives are fundamentally different from those of positivism, which, as a theory of analytic jurisprudence, is largely concerned with conceptual analysis. For his part, Dworkin conceives his work as conceptual but not in the same sense that Hart regards his work:. We all-at least all lawyers-share a concept of law and of legal right, and we contest different conceptions of that concept. Positivism defends a particular conception, and I have tried to defend a competing conception.
We disagree about what legal rights are in much the same way as we philosophers who argue about justice disagree about what justice is. I concentrate on the details of a particular legal system with which I am especially familiar, not simply to show that positivism provides a poor account of that system, but to show that positivism provides a poor conception of the concept of a legal right Dworkin , These differences between Hart and Dworkin have led many legal philosophers, most recently Bix , to suspect that they are not really taking inconsistent positions at all.
Accordingly, there remains an issue as to whether Dworkin's work should be construed as falling under the rubric of analytic jurisprudence. Normative jurisprudence involves normative, evaluative, and otherwise prescriptive questions about the law. Here we will examine three key issues: a when and to what extent laws can restrict the freedom of citizens, b the nature of one's obligation to obey the law, and c the justification of punishment by law. Laws limit human autonomy by restricting freedom.
Criminal laws, for example, remove certain behaviors from the range of behavioral options by penalizing them with imprisonment and, in some cases, death. Likewise, civil laws require people to take certain precautions not to injure others and to honor their contracts. Given that human autonomy deserves prima facie moral respect, the question arises as to what are the limits of the state's legitimate authority to restrict the freedom of its citizens.
John Stuart Mill provides the classic liberal answer in the form of the harm principle:. The only purpose for which power can rightfully be exercised over any member of a civilised community against his will is to prevent harm to others.
Legal Positivism (Stanford Encyclopedia of Philosophy)
His own good, either physical or moral, is not a sufficient warrant. Over himself, over his own body and mind, the individual is sovereign Mill , pp. While Mill left the notion of harm underdeveloped, he is most frequently taken to mean only physical harms and more extreme forms of psychological harm. Though Mill's view—or something like it—enjoys currency among the public, it has generated considerable controversy among philosophers of law and political philosophers.
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Many philosophers believe that Mill understates the limits of legitimate state authority over the individual, claiming that law may be used to enforce morality, to protect the individual from herself, and in some cases to protect individuals from offensive behavior. Legal moralism is the view that the law can legitimately be used to prohibit behaviors that conflict with society's collective moral judgments even when those behaviors do not result in physical or psychological harm to others.
According to this view, a person's freedom can legitimately be restricted simply because it conflicts with society's collective morality; thus, legal moralism implies that it is permissible for the state to use its coercive power to enforce society's collective morality. The most famous legal moralist is Patrick Devlin, who argues that a shared morality is essential to the existence of a society:.
For society is not something that is kept together physically; it is held by the invisible bonds of common thought. If the bonds were too far relaxed the members would drift apart. A common morality is part of the bondage. The bondage is part of the price of society; and mankind, which needs society, must pay its price. Devlin , p. Insofar as human beings cannot lead a meaningful existence outside of society, it follows, on Devlin's view, that the law can be used to preserve the shared morality as a means of preserving society itself.
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Hart points out that Devlin overstates the extent to which preservation of a shared morality is necessary to the continuing existence of a society. Devlin attempts to conclude from the necessity of a shared social morality that it is permissible for the state to legislate sexual morality in particular, to legislate against same-sex sexual relations , but Hart argues it is implausible to think that "deviation from accepted sexual morality, even by adults in private, is something which, like treason, threatens the existence of society" Hart , p.
While enforcement of certain social norms protecting life, safety, and property are likely essential to the existence of a society, a society can survive a diversity of behavior in many other areas of moral concern-as is evidenced by the controversies in the U. Legal paternalism is the view that it is permissible for the state to legislate against what Mill calls "self-regarding actions" when necessary to prevent individuals from inflicting physical or severe emotional harm on themselves.
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As Gerald Dworkin describes it, a paternalist interference is an "interference with a person's liberty of action justified by reasons referring exclusively to the welfare, good, happiness, needs, interests or values of the person being coerced" G. Dworkin , p. Thus, for example, a law requiring use of a helmet when riding a motorcycle is a paternalistic interference insofar as it is justified by concerns for the safety of the rider.
Dworkin argues that Mill's view that a person "cannot rightfully be compelled to do or forbear because it will be better for him" Mill , p. According to Dworkin, there are goods, such as health and education, that any rational person needs to pursue her own good-no matter how that good is conceived.
Thus, Dworkin concludes, the attainment of these basic goods can legitimately be promoted in certain circumstances by using the state's coercive force. Dworkin offers a hypothetical consent justification for his limited legal paternalism. On his view, there are a number of different situations in which fully rational adults would consent to paternalistic restrictions on freedom.
For example, Dworkin believes a fully rational adult would consent to paternalistic restrictions to protect her from making decisions that are "far-reaching, potentially dangerous and irreversible" G. Nevertheless, he argues that there are limits to legitimate paternalism: 1 the state must show that the behavior governed by the proposed restriction involves the sort of harm that a rational person would want to avoid; 2 on the calculations of a fully rational person, the potential harm outweighs the benefits of the relevant behavior; and 3 the proposed restriction is the least restrictive alternative for protecting against the harm.
Joel Feinberg believes the harm principle does not provide sufficient protection against the wrongful behaviors of others, as it is inconsistent with many criminal prohibitions we take for granted as being justified. If the only legitimate use of the state coercive force is to protect people from harm caused by others, then statutes prohibiting public sex are impermissible because public sex might be offensive but it does not cause harm in the Millian sense to others.
Accordingly, Feinberg argues the harm principle must be augmented by the offense principle , which he defines as follows: "It is always a good reason in support of a proposed criminal prohibition that it would probably be an effective way of preventing serious offense as opposed to injury or harm to persons other than the actor, and that it is probably a necessary means to that end" Feinberg By "offense," Feinberg intends a subjective and objective element: the subjective element consists in the experience of an unpleasant mental state for example, shame, disgust, anxiety, embarrassment ; the objective element consists in the existence of a wrongful cause of such a mental state.
Natural law critics of positivism for example, Fuller frequently complain that if positivism is correct, there cannot be a moral obligation to obey the law qua law that is, to obey the law as such, no matter what the laws are, simply because it is the law. As Feinberg puts the point:. The positivist account of legal validity is hard to reconcile with the [claim] that valid law as such, no matter what its content, deserves our respect and general fidelity. Even if valid law is bad law, we have some obligation to obey it simply because it is law.
But how can this be so if a law's validity has nothing to do with its content? The idea is this: if what is essential to law is just that there exist specified recipes for making law, then there cannot be a moral obligation to obey a rule simply because it is the law.
Contemporary positivists, for the most part, accept the idea that positivism is inconsistent with an obligation to obey law qua law compare Himma , but argue that the mere status of a norm as law cannot give rise to any moral obligation to obey that norm. While there might be a moral obligation to obey a particular law because of its moral content for example, laws prohibiting murder or because it solves a coordination problem for example, laws requiring people to drive on the right side of the road , the mere fact that a rule is law does not provide a moral reason for doing what the law requires.
Indeed, arguments for the existence of even a prima facie obligation to obey law that is, an obligation that can be outweighed by competing obligations have largely been unsuccessful. Arguments in favor of an obligation to obey the law roughly fall into four categories: 1 arguments from gratitude; 2 arguments from fair play; 3 arguments from implied consent; and 4 arguments from general utility.
The argument from gratitude begins with the observation that all persons, even those who are worst off, derive some benefit from the state's enforcement of the law. On this view, a person who accepts benefits from another person thereby incurs a duty of gratitude towards the benefactor. And the only plausible way to discharge this duty towards the government is to obey its laws. Nevertheless, as M. Smith points out , p. John Rawls argues that there is a moral obligation to obey law qua law in societies in which there is a mutually beneficial and just scheme of social cooperation.
What gives rise to a moral obligation to obey law qua law in such societies is a duty of fair play: fairness requires obedience of persons who intentionally accept the benefits made available in a society organized around a just scheme of mutually beneficial cooperation. There are a couple of problems here. First, Rawls's argument does not establish the existence of a content-independent obligation to obey law; the obligation arises only in those societies that institutionalize a just scheme of social cooperation.
Second, even in such societies, citizens are not presented with a genuine option to refuse those benefits.
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For example, I cannot avoid the benefits of laws ensuring clean air. But accepting benefits one is not in a position to refuse cannot give rise to an obligation of fair play. The argument from consent grounds an obligation to obey law on some sort of implied promise.
As is readily evident, we can voluntarily assume obligations by consenting to them or making a promise. Of course, most citizens never explicitly promise or consent to obey the laws; for this reason, proponents of this argument attempt to infer consent from such considerations as continued residence and acceptance of benefits from the state.
Nevertheless, acceptance of benefits one cannot decline no more implies consent to obey law than it does duties of fair play or gratitude. Moreover, the prohibitive difficulties associated with emigration preclude an inference of consent from continued residence.
Finally, the argument from general utility grounds the duty to obey the law in the consequences of universal disobedience. Since, according to this argument, the consequences of general disobedience would be catastrophic, it is wrong for any individual to disobey the law; for no person may disobey the law unless everyone may do so. In response, Smith points out that this strategy of argument leads to absurdities: "We will have to maintain, for example, that there is a prima facie obligation not to eat dinner at five o'clock, for if everyone did so, certain essential services could not be maintained" Smith , p.
Punishment is unique among putatively legitimate acts in that its point is to inflict discomfort on the recipient; an act that is incapable of causing a person minimal discomfort cannot be characterized as a punishment. In most contexts, the commission of an act for the purpose of inflicting discomfort is morally problematic because of its resemblance to torture. For this reason, institutional punishment requires a moral justification sufficient to distinguish it from other practices of purposely inflicting discomfort on other people.