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The Problem About the Nature of Law (1982)
Prepared By: Almost paradise :)
Theory of knowledge attempts to clarify the nature of knowledge; Philiosophy of logic examines the
definition of logic; Moral philosophy reflets on the nature and boundaries of morality
- the identity of such disciplines depends on the identity of their subject matter which is why preoccupation
with their own self-identity is typical of many philosophical inquiries
Philosophy of law is partly engaged in an investigation of the nature of law and of the boundary of the legal
There are three current approaches to the question of the nature of law to be discussed
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4. semi-legal predicates are predicates which are normally used to make statements but which
can also be used in other contexts ownership, marriage, contract
Sentences containing semi-legal predicates are not logically equivalent to the sentences
resulting from them by prefixing legally to them
Any legal statement made by the use of a sentence p containing a semi-legal predicate is
logically equivalent to the one standardly made by Legally p
5. Legal statements are often made by the use of ordinary deontic sentences where the content
of the sentence and the context of its utterence indicate that it is used to make a legal statement
(e.g. It is prohibited to park here)
When such a deontic sentence p is used to make a legal statement, the statement thus
made is logically equivalent to the one standardly made by Legally p
- what can be inferred from the 5 types of sentences are these:
1. In the first three = linguistic condition is true
a. all legal statements can be expressed by sentences having the form legally p, which
means that any theory of the nature of law must observe the Linguistic Condition (LC)
LC: All legal statements are statable by the use of sentences of the form Legally p
b. (notes from 2019 reviewer, dont know where they got these, maybe from Profs discussion) linguistic condition
is true because the sentences express what is the law example: Harts legal conclusion
(A has a right to collect from B.)
2. (notes from 2019 reviewer, dont know where they got these, maybe from Profs discussion) In the last two =
sentences may no longer refer to a legal conclusion; there is more than one use
a. I own that pencil. does not readily follow from the rules and conditions as it could mean
many things meanings that are not necessarily legal
b. Legally, p. fails
CONCLUSION: Linguistic considerations impose a constraint on the acceptability of legal theories but that the
inquiry into the nature of law is not a study of the meaning of any term or family of terms
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- most theorists tend to be by education and profession lawyers and their audience often consists primarily
of students of course, they will naturally adopt the lawyers perspective on the law
lawyers activities are dominated by litigation in court, actual or potential
from the lawyers point of view, the law consist of nothing but considerations appropriate for courts to
rely upon
the lawyers perspective consists of the unquestioning acceptance of BI as the starting point for legal
philosophy and as determining its subject matter
- but it does not follow that accepting BI commits one to accepting the lawyers perspective BI need not
be accepted unquestioningly
- Kelsen can be taken as an instructive example of a philosopher who adopts the lawyers perspective
without being aware of this
Kelsen says he is following a combination of the linguistic approach and the institutional approach: any
attempt to define a concept must take for its starting point the common usage of the word denoting the concept
in question
- methodological approach: legal theory must be a pure theory
it is pure of all moral argument and it is pure of sociological facts
- purity from social facts
the analysis of legal concepts and the determination of the content of any legal system depends in
no way at all on the effects the law has on the society or economy, nor does it involve examination of
peoples motivation in obeying the law or in breaking it
law is of law in the books, of an analysis of law using as the raw material only law reports and statute
books
Kelsens two doctrines explains why he is assumed to believe in the lawyers perspective:
1. if the law consists of considerations appropriate for courts to rely upon then it is tempting to regard all
laws as addressed to courts
2. if one thinks of every law as determining the result of a (class of) potential disputes then it is tempting to
regard every law as stipulating a remedy meaning, every law stipulates a sanction but that sanction is
wide enough to cover all remedies excepting declaratory judgment
BI says that law has to do with reasons for courts decisions. It does not say that all the considerations
that courts may rely upon are legal considerations. Nor does it reject such a view.
- Kelsen rejected this: he regarded law as consisting of enacted law, case law and customary law and he
acknowledged that there are other considerations on which courts may rely, called extra-legal
considertions
Kelsens reasoning (above) has nothing to do with BI they derive from the other aspect of purity of legal
theory: its purity from moral considerations
- legal theory is free of all moral considerations which is a pre-requisite for legal theory to be scientific
but this argument is wrongWHY?
the task of legal theory is clearly to study law
if law is such that it cannot be studied scientifically then surely the conclusion must be that legal
theory is not a science
if the law does involve moral considerations and therefore cannot be studied scientifically, then legal
theory will study only those aspects of the law which can be studied scientifically
courts, in fact, do rely on moral considerations that are not incorporated in any legislation, custom or
precedent
To debunk Kelsens arguments:
1. if enacted and case law can be represented as instruction for couts to apply sanctions in certain
circumstances so can those moral consideraions which it is appropriate for courts to rely upon
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2. if all considerations which guide courts in applying sanctions are legal considerations, why are not moral
considerations which do so part of the law even if they are not incorporated in legislation, precedent or
custom?
In America, legal theory has always been dominated by the thought that law is just what the courts do
- they believe in the lawyers perspective, concluding that all considerations which courts may use are
legal
- in particular, R.M. Dworkin developed a theory of law out of a theory of adjudication
points out that judges must use moral considerations in addition to enacted and case law
argues that the moral considerations in which they should use are those which belong to a moral
theory justifying the enacted and case law binding on them
assumes that all the considerations which courts legitimately use are legal considerations
a lawyer has to concern himself not only with legislation and precedent but also with other
considerations relevant to judicial reasoning
a lawyer, fortified in virtue of BI with the knowledge that the law has to do with judicial reasoning
finds no reason from the perspective of his own professional preoccupations to stop short of
identifying the theory of law with a theory of adjudication
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