英国大学法律作业代写
08-21, 2014
道德和政治哲学,它得哲学的一全部分,它直接依赖法律哲学和实践理性的哲学。实践理性,是需要考虑问题的普遍性,试图做出合理的推测，人们可以在此基础之上自由的选择自身的行为,在伦理层面上考虑问题，他们面对每个人无一例外的是,在选择的困境时所表现的行为(作为或不作为),塑造世界的过程,也会形成他或她自己的性格。政治哲学(将没有吸收家庭和家庭)认为我们每个人面临的问题是因为我们需要与其他社区成员保持一致行动,作为成员或领导人的选择重点是需要我们自身的行为做出相应的贡献。
Like ethics and political philosophy, the parts of philosophy on which it is directly dependent, the philosophy of law belongs to the philosophy of practical reason. Practical reason, and thus the philosophy of practical reason (philosophical because considering the problems of practical reason in their full universality), seeks to make reasonable the deliberations and choices by which human persons shape their freely chosen actions and thus shape also themselves and their communities. Ethics considers those problems in the form in which they confront each individual without exception, in the predicament of choice of significant conduct (action or inaction), choice which, shaping the world, will also shape his or her own character. Political philosophy (subsuming without absorbing the philosophy of the household and family) considers the problems confronting each of us precisely insofar as we need to act in concert with other members of our communities, as members or leaders whose choices are choices for the community to whose actions we intend our own actions to contribute. The philosophy of law (legal philosophy) extends and specifies political philosophy by considering precisely how far choices made today for one‘s political community‘s future should be determined or shaped by choices made and acts made in the past, in the form of contracts, wills, constitutions, legislative enactments, customs, judicial decisions, and the like.
That question is itself the topic of a number of ―general principles of law recognized by civilized nations‖,1 fundamental principles which enter directly into the needed determinations. The philosophy of law identifies the grounds for accepting those principles as appropriate (just) and authoritative, along with the grounds for judging appropriate and authoritative the different kinds of private and public law-making and rights-affecting acts (juridical acts) mentioned above. Just as ethics looks to fulfilment in all the basic forms of human good, so far as choices and actions can bear on or be opposed to that fulfilment, and just as political philosophy looks to the bearing of choices and actions on the common good of a political community – on the fulfilment and human rights of all its members – so the philosophy of law finds the grounds for accepting the justice of fundamental principles of law and the authoritativeness of private and public juridical acts in the bearing of those principles and acts on the common good. That common good extends with meaningful continuity from the past in which members of the community chose those acts (as against alternatives, reasonable and unreasonable) into the present which those acts intended precisely to determine and which now can similarly determine (in due measure) the future fulfilment of the same historically extended community and its members.
The reach of the philosophy of law is thus the reach of Aristotle‘s nomothetike2 and Aquinas‘s legis positio,3 which he understood as extending beyond the philosophy – the practical science – whose philosophical truth fits one to participate in constitution-making and legislation, and as including also (subordinate to the constituent and legislative as such) the art and wisdom needed by the judge, not to mention the civic understanding, law-abidingness, and critical allegiance of the good citizen.4
For its understanding of the goods common to all human persons, including all that can be philosophically envisaged about human fulfilment, the philosophy of laws draws directly upon ethics. That understanding takes the form of practical reason‘s very first principles, directing each of us to all the basic human goods (each an irreducible aspect of human flourishing), and of the specifically moral principles that direct us to choose and act reasonably, faced as we are with not one good but many, not one way of realizing each good but many, and not one person in whom these goods can be realized, respected or disrespected but many. For its understanding of the common good of families, of other associations of civil society, and of the state, the philosophy of laws draws directly upon political philosophy. That understanding includes what can be said in general, on the basis of wide human experience, about the factual conditions of co-existence and cooperation in political life and collective action, conditions which statecraft and law-making need to take fully into account and which therefore are part of the matter of political and legal philosophy. An elementary example of such conditions is the fact that unanimity about specific forms of communal life and action is not practically attainable or available as a source of cooperation in the life of a political community. This practically necessitates and justifies the concept and institutions of authority, taken as justifying, albeit presumptively and defeasibly, the obligation of compliance with authoritative directives (legislative, judicial or executive, etc.).5 Or again, elementary facts about the limitations of human foresight justify the institution or practice we call equity (departure from the letter of the established law in the interests of its underlying purposes and justice).
On these bases, philosophy of law extends ethics and political philosophy into the domain of the specifically legal. That domain, as I said above, is characterized by its rooting of grounds for present decisions about the future in facts about the past. Those facts are the sources of law, whether in express legislation, or in the practice and customs of the judiciary or others, or in publicly available doctrine of scholarly jurists. The sources are interpreted as yielding a set of normative propositions (about powers as well as obligations) which in turn are interpreted so as to be coherent in a sense richer and more demanding than mere avoidance of direct contradiction at the point of their full specification as norms of choice and action. Each such set of propositions – ―the legal system‖, ―the law of the land‖, ―our law‖, etc. -- is taken to be applicable, in principle in its entirety, to every person and fact within its jurisdiction. And the validity of each proposition of law in the legal system is taken to be controlled by other propositions within the set, and to be a precondition for its applicability to particular persons and facts. Concepts such as jurisdiction and validity are not, in their substance, unknown to political philosophy; they are already implicit in Aristotle‘s discussion of the desirability of a Rule of Law (Rechtsstaat).6 But they remain rather implicit and unarticulated until the philosophy of law takes them up out of legal discourse. It does so precisely to explain why each legal system appropriately develops these (and other) concepts as technical devices for ensuring that the rules and institutions of a legal system can relatively often do what philosophical reasoning and political deliberation as such often cannot do, viz. deliver an unequivocal answer to some relatively specific question about what will be the right choice and conduct in a specific, indeed particular situation. The capacity of positive law – the set of propositions of law of our legal system – to deliver such determinate answers is one primary way in which it links together the past, present and future of the community, gives effect to legitimate expectations or at least to legally acquired rights, including rights of property, contractual and quasi-contractual rights, trusts, rights of compensation and restitution, and so forth, and thus makes possible a vast expansion of economic and cultural life and relatively secure and autonomous familial and individual choice of conduct and vocation. All this is a part of political philosophy and the political art, a part so extended and specialized as to deserve its distinct (not separate!) place and name, philosophy of law.
If we follow the unequivocal and salutary example of Aquinas, we will make no distinction between lex and ius when the latter term signifies what it signifies in, for example, the phrases ius civile or ius naturale – phrases used by St Thomas entirely synonymously with lex civilis and lex naturalis respectively.7 Hence ―jurisprudence‖ and ―philosophy of law‖ can appropriately be used entirely synonymously, as is usual in English-speaking countries. Of course, both etymological elements in the word ―jurisprudence‖ have some gravitational pull (far from irresistible) towards the relatively more particularized, less universal and hence less philosophical.8 But just as Aquinas treats legis positio as a name not only for the highly particular business of making laws but also for the supreme level of politica, political philosophy/theory, and treats politica as on the same level as philosophy with philosophia moralis – indeed, as being a branch or kind, supremely dignified, of philosophia moralis9 – so too we can rightly take jurisprudence and philosophy of law alike as ranging from the exploration of specific juridical techniques (critically investigating these techniques‘ rational foundations in considerations of human flourishing and moral right) all the way up to the highest and widest principles and other considerations of moral and political theory.
Since ―natural law‖, in the present context, has the same reference as ―the normative principles and standards of ethics and politics‖ (or ―normative political philosophy‖), everything said so far in this article is a piece of natural law theory. That theory autonomously yields, as one of its intrinsic elements, the thesis that human societies need positive law, and an account of many needed features of law, legal systems, and the Rule of Law. Natural law theory, in this context, is just another name for legal philosophy. It is fully positivist, if by that we mean that, properly pursued, it yields a completely sufficient account of the concept and characteristic institutions and sources of positive law and the Rule of Law. There is no proper place for a positivism outside natural law theory.10
The (legal) positivism that is self-conceived as somehow in opposition to natural law theory is (just in so far as it both maintains that self-identification and includes theses differing from those of natural law theory)11 a set of more or less confused and arbitrarily truncated theories, conceived in some instances on the basis of grave misunderstanding12 of the tradition of natural law theory and of some of its theorems, and in other instances as simply the expression of moral scepticism (denial that there are any true propositions about human good and moral right) – and in some instances again, such as Kelsen, on both bases. Neither basis is defensible. Misunderstanding should be abandoned, by attending to evidence and reading classic texts with some care and attention. Scepticism about practical truth may seem at first to be a more worthy basis for legal positivism. But, leaving to one side the responses that can rightly be made to sceptical theses and arguments in ethics (or ―meta-ethics‖),13 it should be acknowledged that if scepticism is correct, there is no philosophy of law. At most there can be historical accounts (tracking competent legal practitioners‘ accounts) of particular communities‘ accepted or imposed normative systems self-interpreted as legal, and of systems analogous to those. The history or set of histories might be eked out by some sort of statistics concerning frequency or ―typicality‖. But if nothing true can be said about human good, there is nothing to be thought or said about normativity, authority, obligation, validity and similar concepts, all of which get their sense on the presupposition that practical reason can distinguish between true and false, good reason and lack of reason, and so forth.
As for that attention to fact which positivists think a virtue of their method, it is fully present and operational in any adequate philosophy of law (natural law theory). For practical reason advances in deliberation towards choice (whether concretely or more universally and abstractly, ―philosophically‖), and does so by the use not only of normative premises about the good and the right but also, indispensably, of factual premises about the conditions in which the good can be attained or would be harmed. The truth of those premises has to be earned, by rigorous attention to facts, experience, the typical, the likely, the physically, biologically or psychologically possible, and so forth.
In short: the philosophy of law is best pursued without reliance on such equivocal labels as ―positivist‖. Should we also dismiss the label ―natural law theory‖? Any sound theory or philosophy of law will need to attend to two broad kinds of principle, norm and standard: those applicable by persons of practical reasonableness only because of they are standards chosen or otherwise factually established by past choices of their community, and those that are applicable whether or not so chosen or ratified. For the latter, the history of our civilization has adopted the name ―natural law‖. The adoption can be traced to Plato‘s engagement with the Sophists‘ theory that more or less egoistic strength and cunning naturally, and so to say ―by right‖ and reasonably, hold sway in human deliberation. Plato‘s brilliant recapturing of ―right by nature‖ from this sophistical error14 has been decisive for our vocabulary, making its way through Aristotle, the Stoics, Cicero, St Paul, Gaius and Aquinas and their successors down to the United Nations Charter15 and today. There is no symmetry of unserviceability between the labels ―positivism‖ and ―natural law theory‖, though the latter, to be sure, labours under misinterpretations as grave as the Sophists‘ and further tangled by a long civilizational sequence of reversions, accretions and quasi-philosophical flotsam and jetsam.
A main reason for wanting to introduce positive law and the Rule of Law is to resolve disputes within a political community about what morality (especially justice) requires, recommends, or permits. There is thus good reason to introduce a way of thinking – call it legal thinking – in which (within undefined but important limits) the sheer fact that a legally (―constitutionally‖) authorized person or body of persons has pronounced its determinatio16 of some disputed or disputable issue is taken as sufficient ground for affirming the legal validity of the determinatio and its propositional product (rule, judgment, etc.). In this way of thinking, issues of the justice or injustice of the determinatio, once it has been made, are pushed to the margins of the legal domain. Only when moral extremes are approached do questions of justice and morality become once again relevant. Thus talk of ―validity‖ can be more or less fully and cleanly reserved to intra-systemic legal (positive-law) discourse, and taken to entail not moral but legal obligatoriness (an obligatoriness not to be understood reductively as merely liability to penalty or punishment).17
Natural law theory has no quarrel with – indeed, promotes – a distinction or bifurcation between intra-systemic [legal] validity (and obligatoriness) and legal validity (and obligatoriness) in the moral sense18. Indeed, it is not unreasonable to see such a distinction at work in the famous tag ―An unjust law is not a law‖. Such a way of speaking is not self-contradictory, paradoxical, or even remarkable: ―an insincere friend is not a friend‖; ―a logically invalid argument is no argument‖; ―a quack medicine is no medicine‖... So too in the famous tag or theorem: ―unjust law‖ (lex iniusta) here refers to an intra-systemically valid legal rule or order,19 and ―not law‖ (non lex) signifies that, moral limits having been transgressed, this same law lacks validity (as law) in the moral sense (i.e. legitimacy) and thus, as such,20 lacks moral obligatoriness.
Shifts of meaning of this kind were studied closely by Aristotle in connection with his accounts of the kinds of equivocation or homonymy, and of what we would now call analogous predication. A word can be said to be analogical when its meaning shifts more or less systematically according to context. The kind of analogy most relevant in the context of human affairs is what Aristotle called pros hen homonymy. This is where the various relevant meanings of a word are all relatable to a focal meaning or sense or use, a meaning which picks out a primary or central case of the kind of reality or subject-matter under consideration – focal and central in some context of discourse or inquiry. The non-focal senses and non-central cases can be thought of as secondary because they are immature or deviant or in some other way watered-down instances or kinds of the reality, at least when regarded from some appropriate viewpoint or for some appropriate theoretical or practical purpose. Legal theorists self-identifying themselves as positivist – that is, as opposing what they think of as natural law theory – have paid all too little attention to this aspect of our language and its engagement with reality (and fulfilment). So the entire legal science of a Kelsen will be constructed on unexamined and simplistic assumptions about the univocality of ―law‖ and the supposed need for a single form of norm to correspond one-to-one with the single-feature definition of law as a social order for controlling conduct by threat of sanction.21 And the near-universal hostility of self-identified positivists to the lex iniusta non lex theorem overlooks the multivocality of terms such as ―law‖ and ―validity‖. What is central in one context or for one set of purposes is secondary in another context or relative to other purposes. Hence the complexity of the relations between legal validity and law‘s moral legitimacy, and between legal obligatoriness in an intra-systemic sense and in a moral sense, manifests itself in dual poles of centrality: the technical-legal, and the morally conscientious. But since immoral or amoral projects of law-making and -maintaining are parasitic on the fuller reasonableness of morally just law, it is the latter pole that has philosophical primacy as well as primacy in the conscience of the legislative reformer and (with some added complexities of responsibility) in the conscience of the true (central-case) judge.
Though, as has been said above, law and legal philosophy has a quasi-distinct domain and technical character, the very idea (concept) of law (an idea without which no laws will be made or maintained) is so dependent upon wider principles of moral and political thought and philosophy that neither law nor its philosophy can avoid engagement with the ethical and political issues and challenges of the age. Particular aspects of our law‘s content (including its procedural rules and institutions) can ameliorate, or in other cases harm and exacerbate, our community‘s common good. The legal instrumentarium can, not infrequently, provide an easy route to destructive social changes, as the apparatus of human rights litigation has, in many places, provided an easy route to abortion, euthanasia, damaging immigration, and same-sex ―marriage‖, to the oppression of critics of homosexual conduct, and to other destructive evils. But what social elites desire can very often be achieved without much resort to that instrumentarium, or even in defiance of it.
It seems to me that the task of legal philosophy today is twofold. It must keep clear its intrinsic relationship with, and dependence upon, all the truths of moral and political philosophy, not least by providing a constant critique of every form of legal philosophy that denies or distorts that relationship. And by its mastery, and its foundational explanatory understanding, of the law‘s technical instrumentarium it must remain in a position to criticize and expose – in the hope of deflecting -- every manipulation of it for purposes destructive of the common good, a good that includes but is not exhausted by the upholding of juridically cognizable rights.
Of special importance in the coming decades will be a recovery of awareness amongst legal philosophers that law‘s paradigmatic form, the ius civile, is the law of a
For Rivista di Filosofia del Diritto no. 1, 2012
11
people,22 posited by a constituent act (or constitutive custom) and ongoing legislative acts of their self-determination as a people, acts which can and should be consistent with their obligations to do and respect right (human rights, as contained in the ius naturale) and their responsibilities towards other peoples and those other peoples‘ self-determination, rights and needs. Just as countless thinkers in the nineteenth and twentieth centuries too casually assumed the justice of communist notions of a propertyless community, notions inadequately attentive to the long-term conditions of a sustainable, prosperous and just society of free persons, with the result that countless millions of people suffered more or less directly from the application in their polities of these errors of practical thought, so likewise many thinkers today too casually assume (explicitly or implicitly) the justice of quasi-communist notions of a borderless humanity, notions incompatible with the long-term conditions of a sustainably just and civilly free political order and Rule of Law. Even in the short term, this kind of error of practical thought results in the kind of political community increasingly familiar, whose peoples‘ multi-cultural internal diversity of ultimate allegiances is both promoted and countered by an ever-growing apparatus of security and surveillance, a severe diminution in freedom of political and intellectual discourse, and an explosion of law-making and regulatory bureaucracy indifferent to the benefit of having a society whose self-determination takes in large measure the form of that sharing of expectations which Ulpian and Aquinas23 called common custom.
Practitioners of the philosophy of law may be especially susceptible to this kind of error, to the extent that they envision legal systems simply as sets of norms, rather than as the principles, norms and institutions adopted by a people extended in time and in territorial bounds, in more or less adequate fulfilment of its moral responsibility to do so.2
Like ethics and political philosophy, the parts of philosophy on which it is directly dependent, the philosophy of law belongs to the philosophy of practical reason. Practical reason, and thus the philosophy of practical reason (philosophical because considering the problems of practical reason in their full universality), seeks to make reasonable the deliberations and choices by which human persons shape their freely chosen actions and thus shape also themselves and their communities. Ethics considers those problems in the form in which they confront each individual without exception, in the predicament of choice of significant conduct (action or inaction), choice which, shaping the world, will also shape his or her own character. Political philosophy (subsuming without absorbing the philosophy of the household and family) considers the problems confronting each of us precisely insofar as we need to act in concert with other members of our communities, as members or leaders whose choices are choices for the community to whose actions we intend our own actions to contribute. The philosophy of law (legal philosophy) extends and specifies political philosophy by considering precisely how far choices made today for one‘s political community‘s future should be determined or shaped by choices made and acts made in the past, in the form of contracts, wills, constitutions, legislative enactments, customs, judicial decisions, and the like.
That question is itself the topic of a number of ―general principles of law recognized by civilized nations‖,1 fundamental principles which enter directly into the needed determinations. The philosophy of law identifies the grounds for accepting those principles as appropriate (just) and authoritative, along with the grounds for judging appropriate and authoritative the different kinds of private and public law-making and rights-affecting acts (juridical acts) mentioned above. Just as ethics looks to fulfilment in all the basic forms of human good, so far as choices and actions can bear on or be opposed to that fulfilment, and just as political philosophy looks to the bearing of choices and actions on the common good of a political community – on the fulfilment and human rights of all its members – so the philosophy of law finds the grounds for accepting the justice of fundamental principles of law and the authoritativeness of private and public juridical acts in the bearing of those principles and acts on the common good. That common good extends with meaningful continuity from the past in which members of the community chose those acts (as against alternatives, reasonable and unreasonable) into the present which those acts intended precisely to determine and which now can similarly determine (in due measure) the future fulfilment of the same historically extended community and its members.
The reach of the philosophy of law is thus the reach of Aristotle‘s nomothetike2 and Aquinas‘s legis positio,3 which he understood as extending beyond the philosophy – the practical science – whose philosophical truth fits one to participate in constitution-making and legislation, and as including also (subordinate to the constituent and legislative as such) the art and wisdom needed by the judge, not to mention the civic understanding, law-abidingness, and critical allegiance of the good citizen.4
For its understanding of the goods common to all human persons, including all that can be philosophically envisaged about human fulfilment, the philosophy of laws draws directly upon ethics. That understanding takes the form of practical reason‘s very first principles, directing each of us to all the basic human goods (each an irreducible aspect of human flourishing), and of the specifically moral principles that direct us to choose and act reasonably, faced as we are with not one good but many, not one way of realizing each good but many, and not one person in whom these goods can be realized, respected or disrespected but many. For its understanding of the common good of families, of other associations of civil society, and of the state, the philosophy of laws draws directly upon political philosophy. That understanding includes what can be said in general, on the basis of wide human experience, about the factual conditions of co-existence and cooperation in political life and collective action, conditions which statecraft and law-making need to take fully into account and which therefore are part of the matter of political and legal philosophy. An elementary example of such conditions is the fact that unanimity about specific forms of communal life and action is not practically attainable or available as a source of cooperation in the life of a political community. This practically necessitates and justifies the concept and institutions of authority, taken as justifying, albeit presumptively and defeasibly, the obligation of compliance with authoritative directives (legislative, judicial or executive, etc.).5 Or again, elementary facts about the limitations of human foresight justify the institution or practice we call equity (departure from the letter of the established law in the interests of its underlying purposes and justice).
On these bases, philosophy of law extends ethics and political philosophy into the domain of the specifically legal. That domain, as I said above, is characterized by its rooting of grounds for present decisions about the future in facts about the past. Those facts are the sources of law, whether in express legislation, or in the practice and customs of the judiciary or others, or in publicly available doctrine of scholarly jurists. The sources are interpreted as yielding a set of normative propositions (about powers as well as obligations) which in turn are interpreted so as to be coherent in a sense richer and more demanding than mere avoidance of direct contradiction at the point of their full specification as norms of choice and action. Each such set of propositions – ―the legal system‖, ―the law of the land‖, ―our law‖, etc. -- is taken to be applicable, in principle in its entirety, to every person and fact within its jurisdiction. And the validity of each proposition of law in the legal system is taken to be controlled by other propositions within the set, and to be a precondition for its applicability to particular persons and facts. Concepts such as jurisdiction and validity are not, in their substance, unknown to political philosophy; they are already implicit in Aristotle‘s discussion of the desirability of a Rule of Law (Rechtsstaat).6 But they remain rather implicit and unarticulated until the philosophy of law takes them up out of legal discourse. It does so precisely to explain why each legal system appropriately develops these (and other) concepts as technical devices for ensuring that the rules and institutions of a legal system can relatively often do what philosophical reasoning and political deliberation as such often cannot do, viz. deliver an unequivocal answer to some relatively specific question about what will be the right choice and conduct in a specific, indeed particular situation. The capacity of positive law – the set of propositions of law of our legal system – to deliver such determinate answers is one primary way in which it links together the past, present and future of the community, gives effect to legitimate expectations or at least to legally acquired rights, including rights of property, contractual and quasi-contractual rights, trusts, rights of compensation and restitution, and so forth, and thus makes possible a vast expansion of economic and cultural life and relatively secure and autonomous familial and individual choice of conduct and vocation. All this is a part of political philosophy and the political art, a part so extended and specialized as to deserve its distinct (not separate!) place and name, philosophy of law.
If we follow the unequivocal and salutary example of Aquinas, we will make no distinction between lex and ius when the latter term signifies what it signifies in, for example, the phrases ius civile or ius naturale – phrases used by St Thomas entirely synonymously with lex civilis and lex naturalis respectively.7 Hence ―jurisprudence‖ and ―philosophy of law‖ can appropriately be used entirely synonymously, as is usual in English-speaking countries. Of course, both etymological elements in the word ―jurisprudence‖ have some gravitational pull (far from irresistible) towards the relatively more particularized, less universal and hence less philosophical.8 But just as Aquinas treats legis positio as a name not only for the highly particular business of making laws but also for the supreme level of politica, political philosophy/theory, and treats politica as on the same level as philosophy with philosophia moralis – indeed, as being a branch or kind, supremely dignified, of philosophia moralis9 – so too we can rightly take jurisprudence and philosophy of law alike as ranging from the exploration of specific juridical techniques (critically investigating these techniques‘ rational foundations in considerations of human flourishing and moral right) all the way up to the highest and widest principles and other considerations of moral and political theory.
Since ―natural law‖, in the present context, has the same reference as ―the normative principles and standards of ethics and politics‖ (or ―normative political philosophy‖), everything said so far in this article is a piece of natural law theory. That theory autonomously yields, as one of its intrinsic elements, the thesis that human societies need positive law, and an account of many needed features of law, legal systems, and the Rule of Law. Natural law theory, in this context, is just another name for legal philosophy. It is fully positivist, if by that we mean that, properly pursued, it yields a completely sufficient account of the concept and characteristic institutions and sources of positive law and the Rule of Law. There is no proper place for a positivism outside natural law theory.10
The (legal) positivism that is self-conceived as somehow in opposition to natural law theory is (just in so far as it both maintains that self-identification and includes theses differing from those of natural law theory)11 a set of more or less confused and arbitrarily truncated theories, conceived in some instances on the basis of grave misunderstanding12 of the tradition of natural law theory and of some of its theorems, and in other instances as simply the expression of moral scepticism (denial that there are any true propositions about human good and moral right) – and in some instances again, such as Kelsen, on both bases. Neither basis is defensible. Misunderstanding should be abandoned, by attending to evidence and reading classic texts with some care and attention. Scepticism about practical truth may seem at first to be a more worthy basis for legal positivism. But, leaving to one side the responses that can rightly be made to sceptical theses and arguments in ethics (or ―meta-ethics‖),13 it should be acknowledged that if scepticism is correct, there is no philosophy of law. At most there can be historical accounts (tracking competent legal practitioners‘ accounts) of particular communities‘ accepted or imposed normative systems self-interpreted as legal, and of systems analogous to those. The history or set of histories might be eked out by some sort of statistics concerning frequency or ―typicality‖. But if nothing true can be said about human good, there is nothing to be thought or said about normativity, authority, obligation, validity and similar concepts, all of which get their sense on the presupposition that practical reason can distinguish between true and false, good reason and lack of reason, and so forth.
As for that attention to fact which positivists think a virtue of their method, it is fully present and operational in any adequate philosophy of law (natural law theory). For practical reason advances in deliberation towards choice (whether concretely or more universally and abstractly, ―philosophically‖), and does so by the use not only of normative premises about the good and the right but also, indispensably, of factual premises about the conditions in which the good can be attained or would be harmed. The truth of those premises has to be earned, by rigorous attention to facts, experience, the typical, the likely, the physically, biologically or psychologically possible, and so forth.
In short: the philosophy of law is best pursued without reliance on such equivocal labels as ―positivist‖. Should we also dismiss the label ―natural law theory‖? Any sound theory or philosophy of law will need to attend to two broad kinds of principle, norm and standard: those applicable by persons of practical reasonableness only because of they are standards chosen or otherwise factually established by past choices of their community, and those that are applicable whether or not so chosen or ratified. For the latter, the history of our civilization has adopted the name ―natural law‖. The adoption can be traced to Plato‘s engagement with the Sophists‘ theory that more or less egoistic strength and cunning naturally, and so to say ―by right‖ and reasonably, hold sway in human deliberation. Plato‘s brilliant recapturing of ―right by nature‖ from this sophistical error14 has been decisive for our vocabulary, making its way through Aristotle, the Stoics, Cicero, St Paul, Gaius and Aquinas and their successors down to the United Nations Charter15 and today. There is no symmetry of unserviceability between the labels ―positivism‖ and ―natural law theory‖, though the latter, to be sure, labours under misinterpretations as grave as the Sophists‘ and further tangled by a long civilizational sequence of reversions, accretions and quasi-philosophical flotsam and jetsam.
A main reason for wanting to introduce positive law and the Rule of Law is to resolve disputes within a political community about what morality (especially justice) requires, recommends, or permits. There is thus good reason to introduce a way of thinking – call it legal thinking – in which (within undefined but important limits) the sheer fact that a legally (―constitutionally‖) authorized person or body of persons has pronounced its determinatio16 of some disputed or disputable issue is taken as sufficient ground for affirming the legal validity of the determinatio and its propositional product (rule, judgment, etc.). In this way of thinking, issues of the justice or injustice of the determinatio, once it has been made, are pushed to the margins of the legal domain. Only when moral extremes are approached do questions of justice and morality become once again relevant. Thus talk of ―validity‖ can be more or less fully and cleanly reserved to intra-systemic legal (positive-law) discourse, and taken to entail not moral but legal obligatoriness (an obligatoriness not to be understood reductively as merely liability to penalty or punishment).17
Natural law theory has no quarrel with – indeed, promotes – a distinction or bifurcation between intra-systemic [legal] validity (and obligatoriness) and legal validity (and obligatoriness) in the moral sense18. Indeed, it is not unreasonable to see such a distinction at work in the famous tag ―An unjust law is not a law‖. Such a way of speaking is not self-contradictory, paradoxical, or even remarkable: ―an insincere friend is not a friend‖; ―a logically invalid argument is no argument‖; ―a quack medicine is no medicine‖... So too in the famous tag or theorem: ―unjust law‖ (lex iniusta) here refers to an intra-systemically valid legal rule or order,19 and ―not law‖ (non lex) signifies that, moral limits having been transgressed, this same law lacks validity (as law) in the moral sense (i.e. legitimacy) and thus, as such,20 lacks moral obligatoriness.
Shifts of meaning of this kind were studied closely by Aristotle in connection with his accounts of the kinds of equivocation or homonymy, and of what we would now call analogous predication. A word can be said to be analogical when its meaning shifts more or less systematically according to context. The kind of analogy most relevant in the context of human affairs is what Aristotle called pros hen homonymy. This is where the various relevant meanings of a word are all relatable to a focal meaning or sense or use, a meaning which picks out a primary or central case of the kind of reality or subject-matter under consideration – focal and central in some context of discourse or inquiry. The non-focal senses and non-central cases can be thought of as secondary because they are immature or deviant or in some other way watered-down instances or kinds of the reality, at least when regarded from some appropriate viewpoint or for some appropriate theoretical or practical purpose. Legal theorists self-identifying themselves as positivist – that is, as opposing what they think of as natural law theory – have paid all too little attention to this aspect of our language and its engagement with reality (and fulfilment). So the entire legal science of a Kelsen will be constructed on unexamined and simplistic assumptions about the univocality of ―law‖ and the supposed need for a single form of norm to correspond one-to-one with the single-feature definition of law as a social order for controlling conduct by threat of sanction.21 And the near-universal hostility of self-identified positivists to the lex iniusta non lex theorem overlooks the multivocality of terms such as ―law‖ and ―validity‖. What is central in one context or for one set of purposes is secondary in another context or relative to other purposes. Hence the complexity of the relations between legal validity and law‘s moral legitimacy, and between legal obligatoriness in an intra-systemic sense and in a moral sense, manifests itself in dual poles of centrality: the technical-legal, and the morally conscientious. But since immoral or amoral projects of law-making and -maintaining are parasitic on the fuller reasonableness of morally just law, it is the latter pole that has philosophical primacy as well as primacy in the conscience of the legislative reformer and (with some added complexities of responsibility) in the conscience of the true (central-case) judge.
Though, as has been said above, law and legal philosophy has a quasi-distinct domain and technical character, the very idea (concept) of law (an idea without which no laws will be made or maintained) is so dependent upon wider principles of moral and political thought and philosophy that neither law nor its philosophy can avoid engagement with the ethical and political issues and challenges of the age. Particular aspects of our law‘s content (including its procedural rules and institutions) can ameliorate, or in other cases harm and exacerbate, our community‘s common good. The legal instrumentarium can, not infrequently, provide an easy route to destructive social changes, as the apparatus of human rights litigation has, in many places, provided an easy route to abortion, euthanasia, damaging immigration, and same-sex ―marriage‖, to the oppression of critics of homosexual conduct, and to other destructive evils. But what social elites desire can very often be achieved without much resort to that instrumentarium, or even in defiance of it.
It seems to me that the task of legal philosophy today is twofold. It must keep clear its intrinsic relationship with, and dependence upon, all the truths of moral and political philosophy, not least by providing a constant critique of every form of legal philosophy that denies or distorts that relationship. And by its mastery, and its foundational explanatory understanding, of the law‘s technical instrumentarium it must remain in a position to criticize and expose – in the hope of deflecting -- every manipulation of it for purposes destructive of the common good, a good that includes but is not exhausted by the upholding of juridically cognizable rights.
Of special importance in the coming decades will be a recovery of awareness amongst legal philosophers that law‘s paradigmatic form, the ius civile, is the law of a
For Rivista di Filosofia del Diritto no. 1, 2012
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people,22 posited by a constituent act (or constitutive custom) and ongoing legislative acts of their self-determination as a people, acts which can and should be consistent with their obligations to do and respect right (human rights, as contained in the ius naturale) and their responsibilities towards other peoples and those other peoples‘ self-determination, rights and needs. Just as countless thinkers in the nineteenth and twentieth centuries too casually assumed the justice of communist notions of a propertyless community, notions inadequately attentive to the long-term conditions of a sustainable, prosperous and just society of free persons, with the result that countless millions of people suffered more or less directly from the application in their polities of these errors of practical thought, so likewise many thinkers today too casually assume (explicitly or implicitly) the justice of quasi-communist notions of a borderless humanity, notions incompatible with the long-term conditions of a sustainably just and civilly free political order and Rule of Law. Even in the short term, this kind of error of practical thought results in the kind of political community increasingly familiar, whose peoples‘ multi-cultural internal diversity of ultimate allegiances is both promoted and countered by an ever-growing apparatus of security and surveillance, a severe diminution in freedom of political and intellectual discourse, and an explosion of law-making and regulatory bureaucracy indifferent to the benefit of having a society whose self-determination takes in large measure the form of that sharing of expectations which Ulpian and Aquinas23 called common custom.
Practitioners of the philosophy of law may be especially susceptible to this kind of error, to the extent that they envision legal systems simply as sets of norms, rather than as the principles, norms and institutions adopted by a people extended in time and in territorial bounds, in more or less adequate fulfilment of its moral responsibility to do so.2
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