Post No.: 0760
At it’s most simplistic, law is a system of rules and standards that has been designed to guide behaviour. It’s usually shaped by morals, and customs like norms and etiquette. Law helps social creatures who are able to understand rules, and thus reason, to co-exist harmoniously.
You might argue that once a lawyer learns every black letter rule (well-established and well-accepted legal rule) then that’s all he/she’ll need to know in order to serve his/her clients.
But the law is hardly always black-or-white, hence aspiring lawyers will also need to understand jurisprudence in order to better navigate the grey areas – when the law basically runs out or when you can’t clearly determine whether a rule applies to a particular situation or not. Jurisprudence is the theory or philosophy of law.
These present big questions like why do we even have law? What is its nature and how does it govern us? What is its relation to morality and should an unjust law count as a law at all? How and when should we be holding people responsible if they did something by accident, are clinically insane, addicted, young, or were sleepwalking? Will neuroscience be able to incontrovertibly answer these questions? Should the law be allowed to manipulate us into doing what’s deemed socially desirable by modifying the costs and benefits of the actions we may undertake, even if it’s for our own good? Should consent always make anything that two people do to each other permissible? And more…
So every good lawyer – and politically-engaged citizen who wishes to scrutinise legislation – needs to study jurisprudence or the theory behind the law. You might encounter gaps in the law, conflicting laws or situations where the law doesn’t speak to you, and these situations are where the knowledge of jurisprudence will help you to figure out what to possibly say. Bad lawyers who just learn the written rules would get stuck and have nothing more to say. Woof!
If there’s no law directly governing what your client is proposing to do then this won’t necessarily mean they’ll be allowed to do it. This is because some doctrine might indirectly suggest that it would be illegal? Good lawyers turn to their knowledge of jurisprudence to argue why the law should be understood in a way that’s favourable for their clients. They’ll be able to point out how jurisprudence is pushing us towards that direction.
Rules are frequently written generally and vaguely, and it’s not always clear how they’ll apply to a given situation – especially one that has no precedence. Good lawyers will use their knowledge of jurisprudence to argue how the rules should be applied to this new situation.
Since these big questions present hotly debated dilemmas or conundrums, there are no obviously right or wrong answers. But they test your critical thinking and the key is – can you justify your chosen stance with reason? Understanding these debates can help you to develop practical arguments about how the law should be applied.
Wherever science can objectively answer a question then the science should prevail. But many questions in law, as in philosophy, cannot be resolved by science. Jurisprudence shows us that open questions are at the very heart of the law. This is probably why lawyers haven’t been replaced by algorithms, at least just yet. The law isn’t always clear-cut, and that’s why a good lawyer can help. Judges and juries are human decision-makers and, for being human, they can be persuaded by good arguments even when a question doesn’t have a black-or-white answer. (As humans, they’re also influenced by factors like emotions that arguably shouldn’t matter but that lawyers can attempt to exploit.)
Reasonable people can disagree with each other, and to think there’s always only one logically correct answer (our own) to every question would be naïve. As an illustration, the logic of ‘whoever can afford something the most should get it’ is only one conception of fairness because another could be ‘whoever needs something the most should get it’. So which logical stance should prevail? (Hopefully, whichever stance you choose, you’ll be consistent in all contexts rather than flip from being e.g. a utilitarian then a deontologist depending on which biasedly suits the outcome you desire! That’s a potential problem with claiming to be mixed in one’s philosophical stances or arguing that ‘it depends’ on the situation. Yet, arguably, being adaptable might be sensible?)
This highlights a natural similarity between philosophy and the practice and operation of law because each is based upon people advancing arguments for their own competing views.
From the perspective of legislators however, our legal systems should ideally aim to agree on some sorts of positions when it comes to trying to plug in holes in the law that are frequented. Where possible, it helps to clarify the law to citizens so that they’ll know where they stand before they act/something happens to them. It shouldn’t really be down to judges in court to decide the law – they should only interpret and apply the law as determined by legislators.
‘Normative theory’ concerns what we should consider as moral or ethical norms. Normative reasoning prescribes the way things ought to be, as opposed to the way things just descriptively are. But our own norms will reveal merely our own particular values and philosophies (e.g. a belief in consequentialism, or regarding the ‘right’ answers to various trolley problem scenarios). Collectively, however, how should society decide what these norms should be?
Some might call something ‘common sense’ but this won’t necessarily make it ‘universal sense’. Moreover, a popular stance won’t necessarily make it a moral stance (like in the case of a mob rule). People have deep disagreements about morality, but the law requires us to agree to, and to impose upon others, certain views. We might think it’s best to avoid imposing our own moral views onto others – but we sometimes need to in order to be able to harmoniously ‘play to the same rules’ and get along. And that’s one, if not the, primary purpose of laws. The law is a way of settling those disagreements, at least for the time being, by authoritatively laying out the rules that everybody should follow. These collective moral norms can change over time though (e.g. regarding treatments towards the mentally ill).
…So one big question within the field of jurisprudence we’ll examine here is – do laws have to be moral in order to count as law? Should an unjust law count as no law at all?
Putting aside for now how we shall determine what is moral – legality surely has to be subordinated to morality?
Well some believe that the law must be moral to count as law. Others contend that legality and morality can be separated, although with differing views concerning when they do – to some, if they’re separated, it’ll necessarily mean that the law is failing to do its job as a law; while to others, it’ll just mean that the law is doing something bad. Some contend that a legal system can choose to make law depend on morality; while others believe that the law is merely a social fact and is whatever legislators say it is and thus doesn’t depend on morality whatsoever, except according to whatever the legislators believe is moral.
The main theories that sit on a spectrum, starting from the theory that claims the strongest link between law and morality to the theory that claims that law and morality are separate, are – ‘strong natural law’ (which posits that the law must be moral to be legally valid); ‘weak natural law’ (which posits that morality isn’t required but a law would be deemed legally deficient if it’s not moral); ‘inclusive legal positivism’ (which posits that legal validity can depend on morality if a legal system chooses so but it doesn’t have to); and ‘exclusive legal positivism’ (which posits that there’s no way that legal validity can depend on morality because this would just give more discretion to what legal officials personally believe counts as moral and thus legally valid).
A problem with the ‘strong natural law’ view is that if we agree that anything that’s unjust doesn’t count as law then will that mean we must accept that anything that’s law is just?!
The classic ‘legal positivism’ view meanwhile states that the existence of law is one thing but its moral or rational merit or demerit is a separate matter. This allows us to accept something as being a law yet we can criticise it from a moral standpoint.
The ‘weak natural law’ view is similar in saying that an immoral or irrational defect would still make it a law but one that’s merely legally defective. Although in what way? In its lack of morality or rationality, or in its inability to produce order? A law can be immoral and/or irrational yet still functionally produce order.
You may adopt the view that law is simply the instruction of a sovereign (e.g. a monarch or democratic government) backed by a threat of force if you don’t comply with it. Yet shouldn’t a law offer a more compelling furry reason to obey it than just because of the threat of force upon you if you don’t? Would this also mean that you might as well disobey a law if you wanted to if there was zero chance of being caught or punished for it? Is there no point in a law unless it’s enforced – or is there some inherent social obligation to obey it? Some argue that ‘it’s the law so we must obey it’, but is the habit of following a law a good enough reason alone to follow it?
The modern ‘legal positivism’ view states that the law is the union of primary rules, which impose duties upon our behaviours; along with secondary rules, which confer the power to change those primary rules (this doesn’t just mean monarchs or parliaments but situations like when anyone writes a will). Amongst these secondary rules is the rule of change (which sets who gets to make new laws), the rule of adjudication (which sets what happens when there’s a disagreement about how to apply the law), and the rule of recognition (which sets what counts as law in the legal system). These three secondary rules are at the foundation of any legal system. The rule of recognition is the most fundamental rule. It isn’t written into the law in the same way that the others are but sits ‘underneath’ the legal system. It isn’t the same as a constitution because what says we must follow the constitution? It’s just some words on parchment otherwise.
We normally look at the practices of legal officials to understand how they decide what counts as law. So the rule of recognition is essentially a description of what the legal officials are collectively doing, which those officials as individuals take as a guide for their own decisions and as a basis for criticism if anyone departs from that guide. So there are proper, normative procedures to follow in order to set the primary rules that will count as the law.
So there’s nothing outside of the law that tells them or anyone what to recognise as law. But will this descend into a case of those who make it up as they go along following those who make it up as they go along?! Is this inescapable? How big should the circle be regarding whom to follow i.e. who counts as the (key) legal officials? Lower court judges look at the Supreme Court judges; who both look at parliament/congress; who might have to look at international law.
Woof. So what do you think about all this? You can reply to the tweet linked in the Twitter comment button below to share your thoughts about what makes a law, or about the field of jurisprudence in general.