Philosophy of Law 2.

The Obligation to Obey Law

Philosophy of law (or legal philosophy) is concerned with providing a general philosophical 3.The Justification of Punishment
analysis of law and legal institutions. Issues in the field range from abstract conceptual
questions about the nature of law and legal systems to normative questions about the
3.Critical Theories of Law
relationship between law and morality and the justification for various legal institutions. 1.Legal Realism
Topics in legal philosophy tend to be more abstract than related topics in political 2.Critical Legal Studies
philosophy and applied ethics. For example, whereas the question of how properly to
interpret the U.S. Constitution belongs to democratic theory (and hence falls under the 3.Law and Economics
heading of political philosophy), the analysis of legal interpretation falls under the heading 4.Outsider Jurisprudence
of legal philosophy. Likewise, whereas the question of whether capital punishment is
morally permissible falls under the heading of applied ethics, the question of whether the 4.References and Further Reading
institution of punishment can be justified falls under the heading of legal philosophy. 1. Analytic Jurisprudence
There are roughly three categories into which the topics of legal philosophy fall: analytic The principal objective of analytic jurisprudence has traditionally been to provide an
jurisprudence, normative jurisprudence, and critical theories of law. Analytic jurisprudence account of what distinguishes law as a system of norms from other systems of norms, such
involves providing an analysis of the essence of law so as to understand what differentiates as ethical norms. As John Austin describes the project, analytic jurisprudence seeks “the
it from other systems of norms, such as ethics. Normative jurisprudence involves the essence or nature which is common to all laws that are properly so called” (Austin 1995, p.
examination of normative, evaluative, and otherwise prescriptive issues about the law, such 11). Accordingly, analytic jurisprudence is concerned with providing necessary and
as restrictions on freedom, obligations to obey the law, and the grounds for punishment. sufficient conditions for the existence of law that distinguish law from non-law.
Finally, critical theories of law, such as critical legal studies and feminist jurisprudence,
While this task is usually interpreted as an attempt to analyze the concepts of law and legal
challenge more traditional forms of legal philosophy.
system, there is some confusion as to both the value and character of conceptual analysis in
philosophy of law. As Brian Leiter (1998) points out, philosophy of law is one of the few
Table of Contents philosophical disciplines that takes conceptual analysis as its principal concern; most other
areas in philosophy have taken a naturalistic turn, incorporating the tools and methods of
1.Analytic Jurisprudence the sciences. To clarify the role of conceptual analysis in law, Brian Bix (1995) distinguishes
1.Natural Law Theory a number of different purposes that can be served by conceptual claims:

2.Legal Positivism 1.to track linguistic usage;

2.to stipulate meanings;
1.The Conventionality Thesis
3.to explain what is important or essential about a class of objects; and
2.The Social Fact Thesis
4.to establish an evaluative test for the concept-word.
3.The Separability Thesis
Bix takes conceptual analysis in law to be primarily concerned with (3) and (4).
3.Ronald Dworkin’s Third Theory
In any event, conceptual analysis of law remains an important, if controversial, project in
2.Normative Jurisprudence contemporary legal theory. Conceptual theories of law can be divided into two main
1.Freedom and the Limits of Legitimate Law headings: (a) those that affirm there is a conceptual relation between law and morality and
(b) those that deny that there is such a relation. Nevertheless, Ronald Dworkin’s view is
1.Legal Moralism often characterized as a third theory partly because it is not clear where he stands on the
2.Legal Paternalism question of whether there is a conceptual relation between law and morality.

3.The Offense Principle

a. Natural Law Theory P7: the rules must not be changed so frequently that the subject cannot rely on them; and
P8: the rules must be administered in a manner consistent with their wording.
All forms of natural law theory subscribe to the Overlap Thesis, which is that there is a
necessary relation between the concepts of law and morality. According to this view, then, On Fuller’s view, no system of rules that fails minimally to satisfy these principles of legality
the concept of law cannot be fully articulated without some reference to moral notions. can achieve law’s essential purpose of achieving social order through the use of rules that
Though the Overlap Thesis may seem unambiguous, there are a number of different ways in guide behavior. A system of rules that fails to satisfy (P2) or (P4), for example, cannot guide
which it can be interpreted. behavior because people will not be able to determine what the rules require. Accordingly,
Fuller concludes that his eight principles are “internal” to law in the sense that they are
The strongest form of the Overlap Thesis underlies the classical naturalism of St. Thomas
built into the existence conditions for law: “A total failure in any one of these eight
Aquinas and William Blackstone. As Blackstone describes the thesis:
directions does not simply result in a bad system of law; it results in something that is not
This law of nature, being co-eval with mankind and dictated by God himself, is of course properly called a legal system at all” (1964, p. 39).
superior in obligation to any other. It is binding over all the globe, in all countries, and at all
b. Legal Positivism
times: no human laws are of any validity, if contrary to this; and such of them as are valid
derive all their force, and all their authority, mediately or immediately, from this original Opposed to all forms of naturalism is legal positivism, which is roughly constituted by three
(1979, p. 41). theoretical commitments: (i) the Social Fact Thesis, (ii) the Conventionality Thesis, and (iii)
the Separability Thesis. The Social Fact Thesis (which is also known as the Pedigree Thesis)
In this passage, Blackstone articulates the two claims that constitute the theoretical core of
asserts that it is a necessary truth that legal validity is ultimately a function of certain kinds
classical naturalism: 1) there can be no legally valid standards that conflict with the natural
of social facts. The Conventionality Thesis emphasizes law’s conventional nature, claiming
law; and 2) all valid laws derive what force and authority they have from the natural law. On
that the social facts giving rise to legal validity are authoritative in virtue of some kind of
this view, to paraphrase Augustine, an unjust law is no law at all.
social convention. The Separability Thesis, at the most general level, simply denies
Related to Blackstone’s classical naturalism is the neo-naturalism of John Finnis (1980). naturalism’s Overlap Thesis; according to the Separability Thesis, there is no conceptual
Finnis believes that the naturalism of Aquinas and Blackstone should not be construed as a overlap between the notions of law and morality.
conceptual account of the existence conditions for law. According to Finnis (see also Bix,
i. The Conventionality Thesis
1996), the classical naturalists were not concerned with giving a conceptual account of legal
validity; rather they were concerned with explaining the moral force of law: “the principles According to the Conventionality Thesis, it is a conceptual truth about law that legal validity
of natural law explain the obligatory force (in the fullest sense of “obligation”) of positive can ultimately be explained in terms of criteria that are authoritative in virtue of some kind
laws, even when those laws cannot be deduced from those principles” (Finnis 1980, pp. 23- of social convention. Thus, for example, H.L.A. Hart (1996) believes the criteria of legal
24). On Finnis’s view of the Overlap Thesis, the essential function of law is to provide a validity are contained in a rule of recognition that sets forth rules for creating, changing,
justification for state coercion. Accordingly, an unjust law can be legally valid, but cannot and adjudicating law. On Hart’s view, the rule of recognition is authoritative in virtue of a
provide an adequate justification for use of the state coercive power and is hence not convention among officials to regard its criteria as standards that govern their behavior as
obligatory in the fullest sense; thus, an unjust law fails to realize the moral ideals implicit in officials. While Joseph Raz does not appear to endorse Hart’s view about a master rule of
the concept of law. An unjust law, on this view, is legally binding, but is not fully law. recognition containing the criteria of validity, he also believes the validity criteria are
authoritative only in virtue of a convention among officials.
Lon Fuller (1964) rejects the idea that there are necessary moral constraints on the content
of law. On Fuller’s view, law is necessarily subject to a procedural morality consisting of ii. The Social Fact Thesis
eight principles:
The Social Fact Thesis asserts that legal validity is a function of certain social facts.
P1: the rules must be expressed in general terms; Borrowing heavily from Jeremy Bentham, John Austin (1995) argues that the principal
P2: the rules must be publicly promulgated; distinguishing feature of a legal system is the presence of a sovereign who is habitually
P3: the rules must be prospective in effect; obeyed by most people in the society, but not in the habit of obeying any determinate
P4: the rules must be expressed in understandable terms; human superior. On Austin’s view, a rule R is legally valid (that is, is a law) in a society S if
P5: the rules must be consistent with one another; and only if R is commanded by the sovereign in S and is backed up with the threat of a
P6: the rules must not require conduct beyond the powers of the affected parties; sanction. The relevant social fact that confers validity, on Austin’s view, is promulgation by a
sovereign willing to impose a sanction for noncompliance.
Hart takes a different view of the Social Fact Thesis. Hart believes that Austin’s theory moral considerations in defining the related notions of law, legal validity, and legal system is
accounts, at most, for one kind of rule: primary rules that require or prohibit certain kinds inconsistent with the Separability Thesis.
of behavior. On Hart’s view, Austin overlooked the presence of other primary rules that
More commonly, the Separability Thesis is interpreted as making only an object-level claim
confer upon citizens the power to create, modify, and extinguish rights and obligations in
about the existence conditions for legal validity. As Hart describes it, the Separability Thesis
other persons. As Hart points out, the rules governing the creation of contracts and wills
is no more than the “simple contention that it is in no sense a necessary truth that laws
cannot plausibly be characterized as restrictions on freedom that are backed by the threat
reproduce or satisfy certain demands of morality, though in fact they have often done so”
of a sanction.
(Hart 1994, pp. 181-82). Insofar as the object-level interpretation of the Separability Thesis
Most importantly, however, Hart argues Austin overlooks the existence of secondary meta- denies it is a necessary truth that there are moral constraints on legal validity, it implies the
rules that have as their subject matter the primary rules themselves and distinguish full- existence of a possible legal system in which there are no moral constraints on legal validity.
blown legal systems from primitive systems of law:
Though all positivists agree there are possible legal systems without moral constraints on
[Secondary rules] may all be said to be on a different level from the primary rules, for they legal validity, there are conflicting views on whether there are possible legal
are all about such rules; in the sense that while primary rules are concerned with the systems with such constraints. According to inclusive positivism (also known as
actions that individuals must or must not do, these secondary rules are all concerned with incorporationism and soft positivism), it is possible for a society’s rule of recognition to
the primary rules themselves. They specify the way in which the primary rules may be incorporate moral constraints on the content of law. Prominent inclusive positivists include
conclusively ascertained, introduced, eliminated, varied, and the fact of their violation Jules Coleman and Hart, who maintains that “the rule of recognition may incorporate as
conclusively determined (Hart 1994, p. 92). criteria of legal validity conformity with moral principles or substantive values … such as
the Sixteenth or Nineteenth Amendments to the United States Constitution respecting the
Hart distinguishes three types of secondary rules that mark the transition from primitive
establishment of religion or abridgements of the right to vote” (Hart 1994, p. 250).
forms of law to full-blown legal systems: (1) the rule of recognition, which “specif[ies] some
feature or features possession of which by a suggested rule is taken as a conclusive In contrast, exclusive positivism (also called hard positivism) denies that a legal system can
affirmative indication that it is a rule of the group to be supported by the social pressure it incorporate moral constraints on legal validity. Exclusive positivists like Raz (1979)
exerts” (Hart 1994, p. 92); (2) the rule of change, which enables a society to add, remove, subscribe to the Source Thesis, according to which the existence and content of law can
and modify valid rules; and (3) the rule of adjudication, which provides a mechanism for always be determined by reference to its sources without recourse to moral argument. On
determining whether a valid rule has been violated. On Hart’s view, then, every society with this view, the sources of law include both the circumstances of its promulgation and
a full-blown legal system necessarily has a rule of recognition that articulates criteria for relevant interpretative materials, such as court cases involving its application.
legal validity that include provisions for making, changing and adjudicating law. Law is, to
c. Ronald Dworkin’s Third Theory
use Hart’s famous phrase, “the union of primary and secondary rules” (Hart 1994, p. 107).
Ronald Dworkin rejects positivism’s Social Fact Thesis on the ground that there are some
According to Hart’s view of the Social Fact Thesis, then, a proposition P is legally valid in a
legal standards the authority of which cannot be explained in terms of social facts. In
society S if and only if it satisfies the criteria of validity contained in a rule of recognition
deciding hard cases, for example, judges often invoke moral principles that Dworkin
that is binding in S. As we have seen, the Conventionality Thesis implies that a rule of
believes do not derive their legal authority from the social criteria of legality contained in a
recognition is binding in S only if there is a social convention among officials to treat it as
rule of recognition (Dworkin 1977, p. 40). Nevertheless, since judges are bound to consider
defining standards of official behavior. Thus, on Hart’s view, “[the] rules of recognition
such principles when relevant, they must be characterized as law. Thus, Dworkin concludes,
specifying the criteria of legal validity and its rules of change and adjudication must be
“if we treat principles as law we must reject the positivists’ first tenet, that the law of a
effectively accepted as common public standards of official behaviour by its officials” (Hart
community is distinguished from other social standards by some test in the form of a
1994, p. 113).
master rule” (Dworkin 1977, p. 44).
iii. The Separability Thesis
Dworkin believes adjudication is and should be interpretive: “judges should decide hard
The final thesis comprising the foundation of legal positivism is the Separability Thesis. In cases by interpreting the political structure of their community in the following, perhaps
its most general form, the Separability Thesis asserts that law and morality are special way: by trying to find the best justification they can find, in principles of political
conceptually distinct. This abstract formulation can be interpreted in a number of ways. For morality, for the structure as a whole, from the most profound constitutional rules and
example, Klaus F¸þer (1996) interprets it as making a meta-level claim that the definition of arrangements to the details of, for example, the private law of tort or contract” (Dworkin
law must be entirely free of moral notions. This interpretation implies that any reference to 1982, p. 165). There are, then, two elements of a successful interpretation. First, since an
interpretation is successful insofar as it justifies the particular practices of a particular General theories of law must be abstract because they aim to interpret the main point and
society, the interpretation must fit with those practices in the sense that it coheres with structure of legal practice, not some particular part or department of it. But for all their
existing legal materials defining the practices. Second, since an interpretation provides abstraction, they are constructive interpretations: they try to show legal practice as a whole
a moral justification for those practices, it must present them in the best possible moral in its best light, to achieve equilibrium between legal practice as they find it and the best
light. Thus, Dworkin argues, a judge should strive to interpret a case in roughly the justification of that practice. So no firm line divides jurisprudence from adjudication or any
following way: other aspect of legal practice (Dworkin 1986, p. 90).
A thoughtful judge might establish for himself, for example, a rough “threshold” of fit which Indeed, so tight is the relation between jurisprudence and adjudication, according to
any interpretation of data must meet in order to be “acceptable” on the dimension of fit, Dworkin, that jurisprudence is no more than the most general part of adjudication; thus,
and then suppose that if more than one interpretation of some part of the law meets this Dworkin concludes, “any judge’s opinion is itself a piece of legal philosophy” (Dworkin
threshold, the choice among these should be made, not through further and more precise 1986, p. 90).
comparisons between the two along that dimension, but by choosing the interpretation
Accordingly, Dworkin rejects not only positivism’s Social Fact Thesis, but also what he takes
which is “substantively” better, that is, which better promotes the political ideals he thinks
to be its underlying presuppositions about legal theory. Hart distinguishes two perspectives
correct (Dworkin 1982, p. 171).
from which a set of legal practices can be understood. A legal practice can be understood
Accordingly, on Dworkin’s view, the legal authority of a binding principle derives from the from the “internal” point of view of the person who accepts that practice as providing
contribution it makes to the best moral justification for a society’s legal practices legitimate guides to conduct, as well as from the “external” point of view of the observer
considered as a whole. Thus, a legal principle maximally contributes to such a justification if who wishes to understand the practice but does not accept it as being authoritative or
and only if it satisfies two conditions: legitimate.
1.the principle coheres with existing legal materials; and Hart understands his theory of law to be both descriptive and general in the sense that it
provides an account of fundamental features common to all legal systems-which
2.the principle is the most morally attractive standard that satisfies (1).
presupposes a point of view that is external to all legal systems. For this reason, he regards
The correct legal principle is the one that makes the law the moral best it can be. his project as “a radically different enterprise from Dworkin’s conception of legal theory (or
In later writings, Dworkin expands the scope of his “constructivist” view beyond ‘jurisprudence’ as he often terms it) as in part evaluative and justificatory and as ‘addressed
adjudication to encompass the realm of legal theory. Dworkin distinguishes conversational to a particular legal culture’, which is usually the theorist’s own and in Dworkin’s case is
interpretation from artistic/creative interpretation and argues that the task of interpreting that of Anglo-American law” (Hart 1994, p. 240).
a social practice is more like artistic interpretation: These remarks show Hart believes Dworkin’s theoretical objectives are fundamentally
The most familiar occasion of interpretation is conversation. We interpret the sounds or different from those of positivism, which, as a theory of analytic jurisprudence, is largely
marks another person makes in order to decide what he has said. Artistic interpretation is concerned with conceptual analysis. For his part, Dworkin conceives his work as conceptual
yet another: critics interpret poems and plays and paintings in order to defend some view but not in the same sense that Hart regards his work:
of their meaning or theme or point. The form of interpretation we are studying-the We all-at least all lawyers-share a concept of law and of legal right, and we contest different
interpretation of a social practice-is like artistic interpretation in this way: both aim to conceptions of that concept. Positivism defends a particular conception, and I have tried to
interpret something created by people as an entity distinct from them, rather than what defend a competing conception. We disagree about what legal rights are in much the same
people say, as in conversational interpretation” (Dworkin 1986, p. 50). way as we philosophers who argue about justice disagree about what justice is. I
Artistic interpretation, like judicial interpretation, is constrained by the dimensions of fit concentrate on the details of a particular legal system with which I am especially familiar,
and justification: “constructive interpretation is a matter of imposing purpose on an object not simply to show that positivism provides a poor account of that system, but to show that
or practice in order to make of it the best possible example of the form or genre to which it positivism provides a poor conception of the concept of a legal right (Dworkin 1977, 351-
is taken to belong” (Dworkin 1986, p. 52). 52).

On Dworkin’s view, the point of any general theory of law is to interpret a very complex set These differences between Hart and Dworkin have led many legal philosophers, most
of related social practices that are “created by people as an entity distinct from them”; for recently Bix (1996), to suspect that they are not really taking inconsistent positions at all.
this reason, Dworkin believes the project of putting together a general theory of law is Accordingly, there remains an issue as to whether Dworkin’s work should be construed as
inherently constructivist: falling under the rubric of analytic jurisprudence.
2. Normative Jurisprudence 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
Normative jurisprudence involves normative, evaluative, and otherwise prescriptive
bondage is part of the price of society; and mankind, which needs society, must pay its
questions about the law. Here we will examine three key issues: (a) when and to what
price. (Devlin 1965, p. 10).
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. 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
a. Freedom and the Limits of Legitimate Law
preserving society itself.
Laws limit human autonomy by restricting freedom. Criminal laws, for example, remove
H.L.A. Hart (1963) points out that Devlin overstates the extent to which preservation of a
certain behaviors from the range of behavioral options by penalizing them with
shared morality is necessary to the continuing existence of a society. Devlin attempts to
imprisonment and, in some cases, death. Likewise, civil laws require people to take certain
conclude from the necessity of a shared social morality that it is permissible for the state to
precautions not to injure others and to honor their contracts. Given that human autonomy
legislate sexual morality (in particular, to legislate against same-sex sexual relations), but
deserves prima facie moral respect, the question arises as to what are the limits of the
Hart argues it is implausible to think that “deviation from accepted sexual morality, even by
state’s legitimate authority to restrict the freedom of its citizens.
adults in private, is something which, like treason, threatens the existence of society” (Hart
John Stuart Mill provides the classic liberal answer in the form of the harm principle: 1963, p. 50). While enforcement of certain social norms protecting life, safety, and property
[T]he sole end for which mankind are warranted, individually or collectively, in interfering are likely essential to the existence of a society, a society can survive a diversity of behavior
with the liberty of action of any of their number is self-protection. The only purpose for in many other areas of moral concern-as is evidenced by the controversies in the U.S.
which power can rightfully be exercised over any member of a civilised community against surrounding abortion and homosexuality.
his will is to prevent harm to others. His own good, either physical or moral, is not a ii. Legal Paternalism
sufficient warrant. Over himself, over his own body and mind, the individual is sovereign
Legal paternalism is the view that it is permissible for the state to legislate against what Mill
(Mill 1906, pp. 12-13).
calls “self-regarding actions” when necessary to prevent individuals from inflicting physical
While Mill left the notion of harm underdeveloped, he is most frequently taken to mean or severe emotional harm on themselves. As Gerald Dworkin describes it, a paternalist
only physical harms and more extreme forms of psychological harm. interference is an “interference with a person’s liberty of action justified by reasons
Though Mill’s view—or something like it—enjoys currency among the public, it has referring exclusively to the welfare, good, happiness, needs, interests or values of the
generated considerable controversy among philosophers of law and political philosophers. person being coerced” (G. Dworkin 1972, p. 65). Thus, for example, a law requiring use of a
Many philosophers believe that Mill understates the limits of legitimate state authority over helmet when riding a motorcycle is a paternalistic interference insofar as it is justified by
the individual, claiming that law may be used to enforce morality, to protect the individual concerns for the safety of the rider.
from herself, and in some cases to protect individuals from offensive behavior. Dworkin argues that Mill’s view that a person “cannot rightfully be compelled to do or
i. Legal Moralism forbear because it will be better for him” (Mill 1906, p. 13) precludes paternalistic
legislation to which fully rational individuals would agree. According to Dworkin, there are
Legal moralism is the view that the law can legitimately be used to prohibit behaviors that goods, such as health and education, that any rational person needs to pursue her own
conflict with society’s collective moral judgments even when those behaviors do not result good-no matter how that good is conceived. Thus, Dworkin concludes, the attainment of
in physical or psychological harm to others. According to this view, a person’s freedom can these basic goods can legitimately be promoted in certain circumstances by using the
legitimately be restricted simply because it conflicts with society’s collective morality; thus, state’s coercive force.
legal moralism implies that it is permissible for the state to use its coercive power to
enforce society’s collective morality. 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
The most famous legal moralist is Patrick Devlin, who argues that a shared morality is to paternalistic restrictions on freedom. For example, Dworkin believes a fully rational adult
essential to the existence of a society: would consent to paternalistic restrictions to protect her from making decisions that are
[I]f men and women try to create a society in which there is no fundamental agreement “far-reaching, potentially dangerous and irreversible” (G. Dworkin 1972, p. 80).
about good and evil they will fail; if, having based it on common agreement, the agreement Nevertheless, he argues that there are limits to legitimate paternalism: (1) the state must
goes, the society will disintegrate. For society is not something that is kept together 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 unsuccessful. Arguments in favor of an obligation to obey the law roughly fall into four
potential harm outweighs the benefits of the relevant behavior; and (3) the proposed categories: (1) arguments from gratitude; (2) arguments from fair play; (3) arguments from
restriction is the least restrictive alternative for protecting against the harm. implied consent; and (4) arguments from general utility.
iii. The Offense Principle 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
Joel Feinberg believes the harm principle does not provide sufficient protection against the
person who accepts benefits from another person thereby incurs a duty of gratitude
wrongful behaviors of others, as it is inconsistent with many criminal prohibitions we take
towards the benefactor. And the only plausible way to discharge this duty towards the
for granted as being justified. If the only legitimate use of the state coercive force is to
government is to obey its laws. Nevertheless, as M.B.E. Smith points out (1973, p. 953), “if
protect people from harm caused by others, then statutes prohibiting public sex are
someone confers benefits on me without any consideration of whether I want them, and if
impermissible because public sex might be offensive but it does not cause harm (in the
he does this in order to advance some purpose other than promotion of my particular
Millian sense) to others.
welfare, I have no obligation to be grateful towards him.” Since the state does not give
Accordingly, Feinberg argues the harm principle must be augmented by the offense citizens a choice with respect to such benefits, the mere enjoyment of them cannot give rise
principle, which he defines as follows: “It is always a good reason in support of a proposed to a duty of gratitude.
criminal prohibition that it would probably be an effective way of preventing serious
John Rawls (1964) argues that there is a moral obligation to obey law qua law in societies in
offense (as opposed to injury or harm) to persons other than the actor, and that it is
which there is a mutually beneficial and just scheme of social cooperation. What gives rise
probably a necessary means to that end” (Feinberg 1985). By “offense,” Feinberg intends a
to a moral obligation to obey law qua law in such societies is a duty of fair play: fairness
subjective and objective element: the subjective element consists in the experience of an
requires obedience of persons who intentionally accept the benefits made available in a
unpleasant mental state (for example, shame, disgust, anxiety, embarrassment); the
society organized around a just scheme of mutually beneficial cooperation. There are a
objective element consists in the existence of a wrongful cause of such a mental state.
couple of problems here. First, Rawls’s argument does not establish the existence of a
b. The Obligation to Obey Law content-independent obligation to obey law; the obligation arises only in those societies
Natural law critics of positivism (for example, Fuller 1958) frequently complain that if that institutionalize a just scheme of social cooperation. Second, even in such societies,
positivism is correct, there cannot be a moral obligation to obey the law qua law (that is, to citizens are not presented with a genuine option to refuse those benefits. For example, I
obey the law as such, no matter what the laws are, simply because it is the law). As Feinberg cannot avoid the benefits of laws ensuring clean air. But accepting benefits one is not in a
(1979) puts the point: position to refuse cannot give rise to an obligation of fair play.

The positivist account of legal validity is hard to reconcile with the [claim] that valid law as The argument from consent grounds an obligation to obey law on some sort of implied
such, no matter what its content, deserves our respect and general fidelity. Even if valid law promise. As is readily evident, we can voluntarily assume obligations by consenting to them
is bad law, we have some obligation to obey it simply because it is law. But how can this be or making a promise. Of course, most citizens never explicitly promise or consent to obey
so if a law’s validity has nothing to do with its content? 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.
The idea is this: if what is essential to law is just that there exist specified recipes for Nevertheless, acceptance of benefits one cannot decline no more implies consent to obey
making law, then there cannot be a moral obligation to obey a rule simply because it is the law than it does duties of fair play or gratitude. Moreover, the prohibitive difficulties
law. associated with emigration preclude an inference of consent from continued residence.
Contemporary positivists, for the most part, accept the idea that positivism is inconsistent Finally, the argument from general utility grounds the duty to obey the law in the
with an obligation to obey law qua law (compare Himma 1998), but argue that the mere consequences of universal disobedience. Since, according to this argument, the
status of a norm as law cannot give rise to any moral obligation to obey that norm. While consequences of general disobedience would be catastrophic, it is wrong for any individual
there might be a moral obligation to obey a particular law because of its moral content (for to disobey the law; for no person may disobey the law unless everyone may do so. In
example, laws prohibiting murder) or because it solves a coordination problem (for response, Smith points out that this strategy of argument leads to absurdities: “We will have
example, laws requiring people to drive on the right side of the road), the mere fact that a to maintain, for example, that there is a prima facie obligation not to eat dinner at five
rule is law does not provide a moral reason for doing what the law requires. o’clock, for if everyone did so, certain essential services could not be maintained” (Smith
Indeed, arguments for the existence of even a prima facie obligation to obey law (that is, an 1973, p. 966).
obligation that can be outweighed by competing obligations) have largely been
c. The Justification of Punishment extent that this can be done: “The point is not that the offender deserves to suffer; it is
rather that the offended party desires compensation” (Barnett 1977, p. 289). Accordingly, a
Punishment is unique among putatively legitimate acts in that its point is to inflict
criminal convicted of wrongdoing should be sentenced to compensate her victim in
discomfort on the recipient; an act that is incapable of causing a person minimal discomfort
proportion to the victim’s loss. The problem with the restitutionary theory is that it fails to
cannot be characterized as a punishment. In most contexts, the commission of an act for the
distinguish between compensation and punishment. Compensatory objectives focus on the
purpose of inflicting discomfort is morally problematic because of its resemblance to
victim, while punitive objectives focus on the offender.
torture. For this reason, institutional punishment requires a moral justification sufficient to
distinguish it from other practices of purposely inflicting discomfort on other people. 3. Critical Theories of Law
Justifications for punishment typically take five forms: (1) retributive; (2) deterrence; (3) a. Legal Realism
preventive; (4) rehabilitative; and (5) restitutionary. According to the retributive
The legal realist movement was inspired by John Chipman Gray and Oliver Wendall Holmes
justification, what justifies punishing a person is that she committed an offense that
and reached its apex in the 1920s and 30s through the work of Karl Llewellyn, Jerome
deserves the punishment. On this view, it is morally appropriate that a person who has
Frank, and Felix Cohen. The realists eschewed the conceptual approach of the positivists
committed a wrongful act should suffer in proportion to the magnitude of her wrongdoing.
and naturalists in favor of an empirical analysis that sought to show how practicing
The problem, however, is that the mere fact that someone is deserving of punishment does
judges really decide cases (see Leiter 1998). The realists were deeply skeptical of the
not imply it is morally permissible for the state to administer punishment; it would be
ascendant notion that judicial legislation is a rarity. While not entirely rejecting the idea
wrong for me, for example, to punish someone else’s child even though her behavior might
that judges can be constrained by rules, the realists maintained that judges create new law
deserve it.
through the exercise of lawmaking discretion considerably more often than is commonly
In contrast to the retributivist theories that look back to a person’s prior wrongful act as supposed. On their view, judicial decision is guided far more frequently by political and
justification for punishment, utilitarian theories look forward to the beneficial moral intuitions about the facts of the case (instead of by legal rules) than theories like
consequences of punishing a person. There are three main lines of utilitarian reasoning. positivism and naturalism acknowledge.
According to the deterrence justification, punishment of a wrongdoer is justified by the
As an historical matter, legal realism arose in response to legal formalism, a particular
socially beneficial effects that it has on other persons. On this view, punishment deters
model of legal reasoning that assimilates legal reasoning to syllogistic reasoning. According
wrongdoing by persons who would otherwise commit wrongful acts. The problem with the
to the formalist model, the legal outcome (that is, the holding) logically follows from the
deterrence theory is that it justifies punishment of one person on the strength of the effects
legal rule (major premise) and a statement of the relevant facts (minor premise). Realists
that it has on other persons. The idea that it is permissible to deliberately inflict discomfort
believe that formalism understates judicial lawmaking abilities insofar as it represents legal
on one person because doing so may have beneficial effects on the behavior of other
outcomes as entailed syllogistically by applicable rules and facts. For if legal outcomes are
persons appears inconsistent with the Kantian principle that it is wrong to use people as
logically implied by propositions that bind judges, it follows that judges lack legal authority
mere means.
to reach conflicting outcomes.
The preventive justification argues that incarcerating a person for wrongful acts is justified
Legal realism can roughly be characterized by the following claims:
insofar as it prevents that person from committing wrongful acts against society during the
period of incarceration. The rehabilitative justification argues that punishment is justified 1.the class of available legal materials is insufficient to logically entail a unique legal
in virtue of the effect that it has on the moral character of the offender. Each of these outcome in most cases worth litigating at the appellate level (the Local
justifications suffers from the same flaw: prevention of crime and rehabilitation of the Indeterminacy Thesis);
offender can be achieved without the deliberate infliction of discomfort that constitutes
2.in such cases, judges make new law in deciding legal disputes through the
punishment. For example, prevention of crime might require detaining the offender, but it
exercise of a lawmaking discretion (the Discretion Thesis); and
does not require detention in an environment that is as unpleasant as those typically found
in prisons. 3.judicial decisions in indeterminate cases are influenced by the judge’s political
and moral convictions, not by legal considerations.
The restitutionary justification focuses on the effect of the offender’s wrongful act on the
victim. Other theories of punishment conceptualize the wrongful act as an offense against Though (3) is logically independent of (1) and (2), (1) seems to imply (2): insofar as judges
society; the restitutionary theory sees wrongdoing as an offense against the victim. Thus, decide legally indeterminate cases, they must be creating new law.
on this view, the principal purpose of punishment must be to make the victim whole to the
It is worth noting the relations between legal realism, formalism, and positivism. While opinions contain explicit references to economic concepts. Often the true grounds of
formalism is often thought to be entailed by positivism, it turns out that legal realism is not decision are concealed rather than illuminated by the characteristic rhetoric of judicial
only consistent with positivism, but also presupposes the truth of all three of positivism’s opinions. Indeed, legal education consists primarily of learning to dig beneath the rhetorical
core theses. Indeed, the realist acknowledges that law is essentially the product of official surface to find those grounds, many of which may turn out to have an economic character
activity, but believes that judicial lawmaking occurs more frequently than is commonly (Posner 1992, p. 23).
assumed. But the idea that law is essentially the product of official activity presupposes the
Posner subscribes to the so-called efficiency theory of the common law, according to which
truth of positivism’s Conventionality, Social Fact, and Separability theses. Though the
“the common law is best (not perfectly) explained as a system for maximizing the wealth of
preoccupations of the realists were empirical (that is, attempting to identify the
society” (Posner 1992, p. 23).
psychological and sociological factors influencing judicial decision-making), their implicit
conceptual commitments were decidedly positivistic in flavor. More influential than Posner’s descriptive claims is his normative view that law should
strive to maximize wealth. According to Posner, the proper goal of the statutory and
b. Critical Legal Studies
common law is to promote wealth maximization, which can best be done by facilitating the
The critical legal studies (CLS) movement attempts to expand the radical aspects of legal mechanisms of the free market. Posner’s normative view combines elements of utilitarian
realism into a Marxist critique of mainstream liberal jurisprudence. CLS theorists believe analysis with a Kantian respect for autonomy. On the utilitarian side, markets tend to
the realists understate the extent of indeterminacy; whereas the realists believe that maximize wealth and the satisfaction of preferences. In a market transaction with no third-
indeterminacy is local in the sense that it is confined to a certain class of cases, CLS party effects, wealth is increased because all parties are made better off by the transaction-
theorists argue that law is radically (or globally) indeterminate in the sense that the class of otherwise there would be no incentive to consummate the transaction-and no one is made
available legal materials rarely, if ever, logically/causally entails a unique outcome. worse off.
CLS theorists emphasize the role of ideology in shaping the content of the law. On this view, On the Kantian side, the law should facilitate market transactions because market
the content of the law in liberal democracies necessarily reflects “ideological struggles transactions best reflect autonomous judgments about the value of individual preferences.
among social factions in which competing conceptions of justice, goodness, and social and At least ideally, individuals express and realize their preferences through mutually
political life get compromised, truncated, vitiated, and adjusted” (Altman 1986, p. 221). The consensual market transactions consummated from positions of equal bargaining power.
inevitable outcome of such struggles, on this view, is a profound inconsistency permeating Thus, market transactions tend, ideally, to be both efficient (because they tend to maximize
the deepest layers of the law. It is this pervasive inconsistency that gives rise to radical wealth without harmful third-party effects) and just (because all parties are consenting).
indeterminacy in the law. For insofar as the law is inconsistent, a judge can justify any of a
d. Outsider Jurisprudence
number of conflicting outcomes.
So-called “outsider jurisprudence” is concerned with providing an analysis of the ways in
At the heart of the CLS critique of liberal jurisprudence is the idea that radical
which law is structured to promote the interests of white males and to exclude females and
indeterminacy is inconsistent with liberal conceptions of legitimacy. According to these
persons of color. For example, one principal objective of feminist jurisprudence is to show
traditional liberal conceptions, the province of judges is to interpret, and not make, the law.
how patriarchal assumptions have shaped the content of laws in a wide variety of areas:
For, on this view, democratic ideals imply that lawmaking must be left to legislators who,
property, contract, criminal law, constitutional law, and the law of civil rights. Additionally,
unlike appointed judges, are accountable to the electorate. But if law is radically
feminist scholars challenge traditional ideals of judicial decision-making according to which
indeterminate, then judges nearly always decide cases by making new law, which is
judges decide legal disputes by applying neutral rules in an impartial and objective fashion.
inconsistent with liberal conceptions of the legitimate sources of lawmaking authority.
Feminists have, of course, always questioned whether it is possible for judges to achieve an
c. Law and Economics objective and impartial perspective, but now question whether the traditional model is
even desirable.
The law and economics movement argues for the value of economic analysis in the law both
as a description about how courts and legislators do behave and as a prescription for how Critical race theory is likewise concerned to point up the way in which assumptions of
such officials should behave. The legal economists, led by Richard Posner, argue that the white supremacy have shaped the content of the law at the expense of persons of color.
content of many areas of the common law can be explained in terms of its tendency to Additionally, critical race theorists show how the experience, concerns, values, and
maximize preferences: perspectives of persons of color are systematically excluded from mainstream discourse
[M]any areas of law, especially the great common law fields of property, torts, crimes, and among practicing lawyers, judges, and legislators. Finally, such theorists attempt to show
contracts, bear the stamp of economic reasoning. It is not a refutation that few judicial how assumptions about race are built into most liberal theories of law.