Abstraction and Practicality in Legal Philosophy - Essay Example

LEGAL PHILOSOPHY: ion or Practicality Is Legal Philosophy an Occupation or is it a Discipline of Real Practical Value and Significance Student's Name:________ University:____________ Abstract Is legal philosophy merely about philosophizing, one made to merely stimilate the mind or does it have actual and realistic contribution to society This work attempts to evaluate legal philosophy, through the various theories and the examples of their application in law in their various forms, and point to the roles and contributions that it (legal theory) gives to the legal system and society as a whole. Is Legal Philosophy an Abstract Occupation or is it a Discipline of Real Practical Value and Significance "The law is the witness and external deposit of our moral life. Its history is the history of the moral development of the race. The practice of it, in spite of popular jests, tends to make good citizens and good men." Oliver Wendell Holmes, Jr. (1897)1 Introduction. The problem of whether the study of the philosophy of law or jurisprudence is to be considered as a mere abstract occupation, the value whereof lies primarily in stimulating the minds of its students or is it a discipline of real practical value and significance is one of a inter-connected cyclical relationship analoguous to the Chinese TaiChi symbol where the opposite contains seeds of the other. It is not possible to choose one over the other and nor is it possible to stand in between and interrupt the constant tension brought about by it cyclic relation. Whether a particular legal philosophy is merely an abstraction or of practical value is one that is constantly changing in the highway of history where old philosophies are constantly revived and injected with new vigor and applied to new contexts which stimulate to further growth of jurisprudence itself. The application of legal philosophy is found in in a different branch of law, in law practice, legislation and judicial adjudication particularly, and because of this many are of the opinion that jurisprudence does not have value in day to day life. This problem is aggravated by the human errors of lawyers, public officials and other people educated in the nuances of law. The mental stimulations and practical value of jurisprudence is best studied and determined from the tension of the dichotomies of theoretical traditions particularly between legal positivism and natural legalism, legal formalism and legal realism, public choice theories and critical legal studies, liberal and socialist-progressive ideologies, indeterminacy/mystification and determinacy of judicial decisions, and of subjectivism and structuralism. Lon L. Fuller (1981)2, on the purpose of legal philosophy, says: As I see it, the object of legal philosophy is to give an effective and meaningful direction to the work of lawyers, judges, legislatures, and law teachers. If it leaves the activities of these men untouched, it it has no implications for the question of what they do with their working days, then legal philosophy is a failure. Legal Positivism versus Natural Law Theory. For legal positivists, rights are are such and are legal if and only if they are declared to be such by the sovereign legal authority. From their viewpoint, the government exists before the right. The sovereign, in the form of legislature or executive with constitutional legislative powers or an administrative body enacting regulations with status of law, being the exclusive source of law must grant a right otherwise it does not exist. The magistrate only enforces the strictures of the law. For legal positivists, the criterion for validity of law is posited by the sovereing and is other than morality because for them, "it is in no sense a necessary truth that laws reproduce or satisfy certain demands of morality, though, in fact they have often done so. (Hart, p.181-2)3 The law as a social construct is the premise. The moral and political aspect of law is not denied, but positivism insists that the descriptive or conceptual approach to law is the important and necessary aspect of law, in itself and as a tool for evaluating the law. For Austin (1832)4, laws "are commands of a sovereign." He expounded legal positivism, through which law was subject to systematic treatment by trained professionals. The dogma of legal positivism is formulated by Austin5 in the following statement: The existence of law is one thing; its merit or demerit is another. Whether it be or be not is one enquiry; whether it be or be not conformable to an assumed standard, is a different enquiry. A law which actually exists, is a law, though we happen to dislike it, or though it vary from the text, by which we regulate our approbation and disapprobation. (p.157) Hart revived mordern legal positivism and pointed to social convention as the source of law using Austin's theories as jump-off point. Hart's discussion of law is independent of legal legislation, legal analyis by scholars, legal criticism by its subjects and legal practice by lawyers, all of which he swept under the rug he called penumbra. For Hart (1958)6, "Law is not morality; do not let it supplant morality." (p.618) By severing law from morality, Hart intends to protect morality from law to enable citizens to distinguish from valid and moral law from valid and immoral law because "a law which actually exists is a law". (Austin, quoted infra)7 "Laws may be law but too evil to be obeyed" (p.260)8 American slavery laws, South African apartheid laws and Nazi secret laws are examples of immoral but valid laws. In this regard, natural lawyers also assert with positivists that there is no moral obligation to follow immoral laws. In effect, for the positivist, morality is the critique of law. Positive law needs morality to contrast with itself because only through it can law be understood. In his classic work The Concept of Law9, Hart forwards his belief that those who include moral considerations in defining the law confuses law as it is and law as it should be. (594-98) For Hart, social convention as source of law constitute of rules of recognition which provide the means for the creation, modification and annulment of legal standards. The first are primary rules that have substantive content and secondary rules that identify the former. The continual operation of the said rules make the legal system. Hart offers this theory in exchange for the Bentham-Austin command theory, which relies on cercion or the threat thereof for its effectivity. Hart seems to perceive that basing law on sanctions would only make it ineffective when the sanction can be evaded. For him the internal recognition of the rule is essential to its being complied by those subject to it. Natural Law theories start from a "state of nature." They envision a society without a government, which they argue is the natural state of man before creating society and government. For Locke (1690)10 "all men may be restrained from invading other's rights, and from doing hurt to another, and the law of Nature be observed, which willeth the peace and preservation of all mankind." The legal theories of the naturalist tradition is based on the recognition of natural rights. Most prominent in the writings of Thomas Aquinas11, natural law descends from divine and eternal law. Natural law theory insist on a moral foundation for all valid conception of law. For Thomas Hobbes12 also, the laws of nature are divine and they bound all humans. Natural lawyers of this time consider jurisprudence as a mere branch of moral or political theory. Blackstone (1979)13 expressed the classical natural law thesis as follows: This law of nature, being co-eval with mankind and dictated by God himself, is of course superior in obligation to any other. It is binding over all the globe, in all countries, and at all 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. (p.41) For the adherent of natural law, the law is a moral instrument because the principles of reason, justice and conscience which it embodies is implicit in human nature as the divine is its source. Such being the source of law, there is unity of the "is' and the "ought" and therefore, the law cannot be interpreted separately from its moral content. Their theories constitute for the natural law philosophers a moral filter through which law must pass to be valid. Law, therefore, is morally prescribed or is subject to moral evaluation. Idealist natural law theorists like Finnis have an internal moral high view of an ideal law promoting common good. For John Finnis (1980)14, "the principles of natural law explain the obligatory force (in the full sense of 'obligation') of positive laws, even when those laws cannot be deduced from those principles" (p.23-24) Law for Finnis is "the way of thinking of someone who treats a rule as a reason for action." (2002, p.27)15 Fuller (1964)16, on the other hand, lists eight (8) principles of procedural morality requirements which every law should satisfy; these features serve "the enterprise of subjecting human conduct to the governance of rules." (p.106) Martin Luther King built a creative bridge joining natural and positivist legal philosophy which gave impetus to civil rights movement.17 A brand of legal philosophy that relied on history and group or race memory of society which constitutes its law could constitute a resolution of the schism between naturalism and positivism allowing the accomodation between morality and politics. The historical theory required the application of precedents which reflect natural law principle in like cases. Positivist principle is also applied in objectivity in deciding cases where enacted statutes are applied and interpreted and in cases where no applicable law is present by applying other legal norms including recognized customs, general principles and rules of law. For the Natural Law theorist, adjudication theory view the judge's role as the application of reason. Traditional judicial role is merely interpretative with regards to statutory law. It is a power "not delegated to pronounce new law, but to maintain and expound the old one." (Blackstone)18 Legal Formalism versus Legal Realism. Formalism or conceptualism or objectivism approaches law like a science or math. For the formalist, the judge objectively and impersonally decides cases through logical deduction of the correct resolution of the issues raised by the parties from a definite and consistent body of legal rules.19 The way to do so is for the magistrate to identify the relevant legal principles and apply them to the the facts of the case, and logically deduce a rule that will govern the outcome of the case. Proponents of legal realism assert that cases present hard questions that the judge must resolve by balancing the interests of the parties and to draw an arbitrary line on one side of the dispute, which line depends upon the inclinations, political, economic and moral, of the judge. For the realist the law is indeterminate, uncertain and imprecise by necessity arguing that deductive reasoning applied to legal materials does not and could not uniquely determine the outcome of particular cases. Judicial decisions are not capable of rational prediction or deduction because the law is indeterminate and the rules of law do not compel judges to decide cases in a particular manner. According to Karl Llewellyn (1940)20, legal realism is "a philosophy not only of Law, but also of Law's Function, and of Law's Operation, and of Legal Institutions, i.e. of Law and Law's Work, and Law's Personnel." Hart doubts the indeterminacy alluded to by Realists as exaggerated and includes them in his "penumbra of doubts."21 Dworkin22 also agrees that the indeterminacy is exaggerated and introduced principles of law in addition to Hart's rules to guide judges in determinate case resolution. Public Choice and Pragmatist Theories versus Critical Legal Studies. Public Choice theorists23 study how law is made and put into effect. They admit and accept the intimate relationship of politics and economics in law. For Public Choice adherents, the government is not "some organic entity that always makes decisions in the public interest" not is it "a mechanism that automatically corrects the failings of the market process."24 A great part of their study involves the bureaucracy and veiw, "governmental decisions and policies are simply outcomes of the interactions of the people who relate to one another through a particular political system or constitutional order."25 Using this vantage point, public choice theorists intend to improve governmental methods and functions. They deviate from traditional economics which dwells upon abstraction and instead analyze actual human functions in real world economics and politics. Pragmatic Jurisprudence stemmed from Economics and Law Movement. They insist on the utilitarian and autonomic use of law and the legal system to maximize wealth in society26. Critical Legal studies27 also studies the law as applied in the political and iterpretative process and as it impacts upon the public. Critical legal theory brought together legal realism and new Marxist thought. Drawing on deconstructive thought and theories of post-modernity, critical legal studies view legal systems in both operation and content as systems of legitimation and privileging. The critical thought view law as an effect and not a genuine cause. New Marxist theorists insist that the law is very indeterminate and radically so when ideology shapes its contents. It involves specific techniques and philosophical theories used to reveal hidden antinomies in the legal thought and process thereby challenging and overturning accepted norms and standards. Feminist legal theory is based on equality of the sexes in society, on achieving it on political, economic and social terms. It views law, its function, form and meaning as written from the masculine point of view and expounds the said view to the disadvantage of females. Gender, for them, is socially created and gender-related values are critically evaluated and corrective measures are installed. Critical Race theories, on the other hand, attempt to deconstruct color tendencies of the law by examining its racial/racist history and its racial/racist consequences. Hart versus Dworkin. Hart used the developments of linguistic philosophy to enhance his legal theories. The modern positivist thought forwarded by Hart enabled the elucidation of the theories of normativity of law developed from social convention. Hart espoused the distinction between internal and external representation of the law which makes it possible for guiding human behavior without reliance to coercion or the threat of its employment. It clearly explained the pedigree of rules which point to the validity of particular law and the obligation to obey law. "The problem of the normativity of law is the problem of explaining the use of normative language in describing the law or legal situations." (Raz, 1990, p.170)28 Dworkin rejected the Hart's view of rules as existing due to social convention. He attempted to re-inject into law the practical aspects by asserting a theory on interpretive adjudication. The conception of rules that Hart forwarded was criticised by Dworkin as as a narrow plain fact view and as such fails because judges has only one standard to rely on, primary rules established by secondary rules, and gives them the option to resort to too much discretion. Instead of exercising free-wheeling discretion, judges should apply the principles of law upon which to base their judgement. For Dworkin, judges sometimes base their decisions on moral principles as a fact and that doesn't fulfill the social criteria.29 "The character of judicial reasoning is not one of discretion, then, but of an obligation to seek out a decision bsed on principle that protects civil rights and upholds the moral norms of society."(Dworkin, p.637)30 Dworkin does allow the exercise of discretion on the part of judges through the analysis of moral and political considerations to arrive at the correct decision. Dworkin argued against the idea and forwarded the presence of legal principles, in addition to rules, upon which the proper decision should be based. For him, rules may sometimes have moral values determinative of specific outcomes but principles don't and, therefore, must be weighed. Empiricism versus Non-Empiricism. Bentham employed utilitarian philosophy in language. For him, the meaning of a word is causal; it has the capacity to act through a perceptible visual representation of the name. "By these general terms or names, things and persons, acts and so forth are brought to view." (Bentham 1782, p.82) This method resulted to a view of legal adjudication that is empirical.31 Kelsen believes that law is normative and should not be based on coercion. For him law is a normative system of rules32 (1945) and legal interpretation concerns non-empirical norms33 (1967). Kelsen's theory distinguishes law from both sociology and morality. Kelsen rejects beginning legal interpretation with a factual determination of the legal system arguing that "all laws must be part of one legal system." (p.333-339)34 Kelsen argued that legal meaning is abstract, not percievable through the senses35, (and therefore non-empirical.) Analysis in accordance with Kelsen's system is analogous to logical analysis of language. Theoretical Considerations of Justice. Dworkin forwards integrity as a principle to achieve some form of justice when fairness and justice collides. According to him, the varied views on justice in the real world prevents it achievement in pure form. With integrity which use the idea of equality of outcomes rather than real equality, distributive equality is reached. Rawls, in his A Theory of Justice (1971), applied utilitarianism and social contract theory to the theory of justice. His work defined the principles of justice in an ideal setting. He used social contract theory to provide the strong support for equality of basic rights. Rawls recognized the danger that utilitarianism may justify the sacrifice of the rights of some especially for the good or happiness of the greater number but he assert that the theory of justice as fairness, being a social contract theory would morally justify the act. In the said theory, the principle of equal rights for all citizens of a state is given primacy over the goal of achieving the greatest good for the greatest number of people.36 Conclusion. Philosophers, Politicians, Sociologists, Economists, Political Scientists and Lawyers all delve into legal philosophy, philosophy of law and jurisprudence and they understand each differently according to their personal tendencies. There are some legal philosophers, the purists and armchair metaphysicians particularly, who consider their work as purely cerebral and as separate from the war in the trenches that lawyers and politicians do in the society, relegating to the background the important considerations of relevance, interest and moral value. To concentrate only on that regard may lend finesse in arguments and writings, but would that help improve the individual citizen and the society It should not be ignored that individual rights have to be protected but also evaluated and improved upon in order to arrive at true or pure rights, armored from deconstructionist methods, those that are not premised on unequality or disadvantage or other such as what critical law studies tend to accuse law as being guilty of. Legal philosophy has practical value and real significance, even as a unique stimulant of its students' minds, because sooner or later those students will be placed in the position to apply the fruits of their endeavor. It preserves the fruits of human evolution and has replanted its seeds so that mankind may further reap further fruits of its evolution, experience and social experiments. The institutions embedded in the legal system are born of legal philosophy is purposely intended to free mankind from the morass of vicious cycles of half-hearted improvemnts and double backsliding. According to Austin (1995)37, analytic jurisprudence seeks to put a handle upon "the essence or nature which is common to all laws that are properly so called." (p. 11) Raz38 rejoined: "Legal Philosophy seeks to understand the nature of law, and that involves improving our understanding of the concept of law." The truths which philosophy, jurisprudence included, seeks to uncover are general truths or knowledge necessary for the development of law and society. There are and will always be cases of mere theorizing among legal philosophers. This will become more prevalent in jurisdictions where legal philosophers are not legal practitioners. This has always been the case. Positivist, it is true, want to inject more philosophical sophistication into law but for tangible ends. In fact, Hart also is appalled by critical legal theory. Traditional positivism sees speculative theorizing as its antithesis. Positivism contributed to the narrow view of the law by humanizing it, contributing to conceptual logic and moral underpinnings of criminal law, introducing doctrines on the nature of intentions and acts, justification and excuse and atempts, ommissions and specific crimes. Laws all over the world are given instances of liniency due to the dreadfulness that sometime strike criminals for instance, in which case they are treated as sick to be treated and not to be punished. Central concepts like authority, reasons, rules and conventions were enhanced. On the other hand, natural legal theory also left its mark on the law with the principles of justice, due process, human rights and many improvements on criminal prosecution and procedure. Critical legal studies review the foundation of legal thought and institutions. The laws affecting labor and employment, divorce, reproductive rights, rape and the like came out of this endeavour. The doctrine of informed consent, bioethics and the application of anti-trust law has drawn legal medecine from mere considerations of malpractice and forensics. The mental stimulation derived from the personal study of law and legal philosophy may benefit the individual in sharpness of mind but without concrete application, study remains intangible thought. It would benefit the individual as much as it would benefit the society if thoughts are tested in experience. Legal philosophy should go hand in hand with the legal institutions in their development. Legal philosophy, it cannot be denied, gives our legal practitioners and legal institutions a more rounded dimension. The concept of social justice whittles away the rough and sharp edges of law, enabling people of various races, education and ideologies to live together in harmony. Indeed, in understanding the philosophy of law we understand ourselves and others better. The well-rounded legal philosopher takes legal analysis in its three dimensions simultaneously: legal theory, legal doctrine and legal practice together as he operates in the real world. Legal doctrine guides human conduct. Legal theory guides the selection of the applicable doctrine. Legal practice is the application of the doctrine to given set of facts. The stimuli given by certain gifted legal philosophers such as Hart and Dworkin are undeniable and even if eventually they may be forgotten in time let their lessons remain in human society. Read More