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Theorists would be considering/criticizing: What is the law? What should law be?
TRADITIONAL NATURAL THEORY
AQUINAS
Law sets out the practical reason (steps) that take us to common good (which is objective of the law)
- we don’t know how to get there, so the law exercised by authorities guides us
- moral obligation to obey the law
Four elements of a valid law
1. Must be directed to the common good
o Common good of community: self-preservation, procreation, living harmoniously, exercising
intellectual capabilities
o NOT what most individuals want, but what is best for all
2. Must follow practical reason
o Law directs steps to reach common good
3. Must be made by valid lawmaker
o Natural rulers know what is common good, what will achieve universal happiness
o Naturally ordered relationship natural rulers and naturally ruled
4. Must be promulgated (known, written)
o Known, written
 Directive that fails to meet these conditions FAILS to be valid law
Law should be understood as teleological (has proper end/function – common good – morality)
- Would have no unjust laws, because all is for good/moral end
o Agreement with positivism/Austin – moral obligation to obey the law but have different reasons:
For Aquinas is bc law is moral, obedience is morality; Austin have moral obligation to obey all valid
laws, evaluate with morality
Prefers legislation (true law-making authority) over judges (implementers)
- interpreting law: spirit of law is most important (and spirit of law is always aimed at common good)
- judges merely interpret law by applying to particular cases
Law comes from God, reason (external sources), but is a divine morality filtered through rational beings. What
is special about us as humans is that God has imbued us with rationality and reason. Human law is special,
because it is divine law filtered through the human brain (reason). It is not straight divine law, as filtered through
the human brain. The human brain, with rationality and reason, takes these principles and sets out these rational
steps that human beings can follow.
The nature of these laws is to take us to the common good, as that is what God wants for us. As God is the
ultimate source of these laws, his objective is to get us to all living in the common good. That has to be the true
objective of the laws that we create.
Aquinas understands the common good is not as majoritarian preference (utilitarianism), it is not everyone
agreeing on something. Rather, it is essential, what God has in mind for us. Laws are valid therefore if they
achieve the purpose of the common good, and set out the reasonable steps for us to follow to get there. If they do
not set out the steps, then they can’t achieve this very important purpose.
Laws also, while getting us in the habit of obeying/trusting that the law is taking us to the common good, gets
us in the habit of being obedient. This is good for TA, as obedience is essential to the common good. Obeying the
law all the time is good, as obedience leads to common good.
Law is fundamentally teleological in nature. For TA, it is important that law has a purpose. If it is not setting
out the practical reasoned steps for the common good, it is NOT the law; it is an empty rule pretending to be a
law – and we don’t need to follow it.
The relationship of law to morality for Aquinas is that law must be moral.
LEGAL POSITIVISM
REJECTION of Natural Law  Separation Thesis
- law does not seek good/no moral end served (SEPARATE from morality)
.:. is possible for there to be unjust laws (vs naturalism)
o (but agree with naturalism that there is a moral obligation to obey the law)
AUSTIN
Law as command
Law is command, issued by superiors, to subordinates, and backed by threats of sanctions
- Superior = sovereign; determined superior ppl are habit in obeying; cannot be bound by law (as law is only
issued to subordinates)
- Created with accordance of rule making jurisdiction – valid law passes pedigree test (if validly made as
above, is valid law)v
Judicial decisions are specific commands; judges are subordinates acting as delegated (as opposed to Realism)
Austin said, we must evaluate laws through congruence with [divine] morality (of which utilitarian value may be a
guide)
Bentham, rejecting morality, says we must evaluate laws through congruence with utilitarian value
Bentham recognised that a constitution, binding on the sovereign, might draw at least some of its content from moral
principles (although Austin rejects idea of a constitution as binding on the sovereign and therefore law- of moral or
political force only)
John Austin responds to TA by saying that ideas of morality and good are separate from the law. It is nice if
these two go together, and sometimes they do, but it is a coincidence. A law does not stop being a law if it is
devoid of moral content. There can be immoral laws. A law is a human artefact. If we want to know if a law is a
valid law (that is, if we should follow it) look at who made it and how was it made. Was it a valid lawmaker and
was it made according to the rules of the society and system in which it was made? If yes, then it is a valid law.
If we believe that law must be moral to be law, we have to follow the law. WE have to follow it because it is
good, right and moral. It becomes hard to change a law, because it has this natural connection. But, if law is just
an artefact then we can evaluate it with a reference to morality. Use morality as a measuring stick. Measure the
law and see how it sizes up – If it is inadequate, we can change it.
Austin’s legal positivism is very sovereign-centric (all about the legislature). The legislature is sovereign and
makes the rules. Because it is the only rule making authority, the role of the judiciary is very limited – just to
interpreting and implementing the rules set down by the legislature. There are “bits” in the law (common law)
where legislature has delegated space to the judiciary to make rules, because they decided to do it that way.
However, they can still come and take over (doctrine of parliamentary supremacy).
MODERN POSITIVISTS:
BENTHAM
Does this rule maximize utility?
Utilitarianism – whether the rule or action will maximize happiness
- Differs from Aquinas who says ppl don’t know what’s best, need someone to tell them what’s will lead to
common good
- Agrees with Raz who says ppl don’t have to follow authority if not justified
RAZ
Law is authority.
Law is what is done (period) – no dialogue whether is good, reasonable, etc.; law is authority and has right to tell
subjects what to do
“service conception” of authority – claim of authority is justified when authority is performing service for subjects;
helping them act better than they would otherwise (without benefit of authority intervention)
- If not justified, don’t need to follow,
o Disagree with:
 Aquinas who says ppl wouldn’t know what’s best for themselves
 Austin who says laws are valid bc validly made
o Agrees with Bentham who says rule should maximize happiness
HART
Law as different rules for different purposes
Primary rules – tell us what we can and cannot do
Secondary rules – rules by which we can change the rules, adjudicate disputes about the rules (how we figure out
what the rules are)
Rule of Recognition: social rules, social practice with distinguished characteristics
- Engaging in behaviour believed to be obligated to engage in
- Requirements for valid laws that are “recognized” by officials within the legal system
o Apply criteria and believe they ought to apply them
Don’t have to be correct to believe in the rules –just saying that when rules exist, rule of recognition exists
- Possible to be mistaken about whether rules ought to be applied (moral mistake)
- Disobedience can be warranted if morally reprehensible laws
o Differs from Aquinas (all law is moral), Austin (have moral obligation to follow the law)
Separation Thesis
Law and morality are different – can accept unjust law, but deny morality to obey (vs Austin)
- Weigh competing moral obligation vs legal obligations
Legal rules expressed generally, to apply to all situations – if don’t apply courts then interpret
- penumbra case: situation falls outside settled meaning (everyone agrees what would happen/how law
applies in the situation)  hard cases
Judges not doing what they want to do, not applying social policy, not applying their own morality (vs natural law),
are not automatons (similar to realist?)
- draw on terms of rule-governed practice to apply to hard case
- terms = principles of justice [ex: Charter?]
- decide in accordance with needs of society
Hart says there is a more important role of judges. Penumbral cases, and what judges do in these cases, is not
judges implementing the will of the legislature. Rather, it is judges exercising discretion.
If judges are not just implementing the will of the legislature in a mechanical way, are they just bringing in
their own morality in the absence of law? Is it just what they think is morality (as Hart is less convinced of
universal morality). Hart says NO judges are not simply implementing their own morality. If you look carefully,
you see they are implementing the terms of the rule-governed practice. They are applying these to develop the
law in penumbral cases, where there is no settled core of meaning that compels a certain decision.
How are these terms of the rule-governed practice different than morality (as Hart is a positivist, he says
there’s a separation). These terms are a part of the law. They are ideas that “float” through the law – unifying
ideas (this is very similar to what Dworkin calls principles). These ideas underlie the law – principles of
administrative fairness, fundamental justice, etc. (Fuller was sceptical of this. Are these really separate from
morality?). There is a consistency in the legality.
Hart also comments on why the law is valid, and why we should follow it. Hart defends the separation thesis –
law is valid and we follow the law for reasons beyond merely beyond the reasons why law is made. We are not
following the law because we have a moral obligation to follow it (beyond the early positivists) – there is
something beyond what the law is made and how it is made. BUT there is more than just the law being moral.
Hart has the rule of recognition and “ought” claims – laws are valid if they exercise the “ought” claims on most
of us, most of the time, and in particular, on the players in the legal system (those responsible for developing and
implementing the legal system). These people must have a “feeling” that they “ought” to follow these rules – not
just because they don’t want to be punished, there is something beyond it – a psychological buy-in or felling. This
is the RULE OF RECOGNITION. Recognizing that these rules are laws, and this is where the laws get their power,
strength, and validity. If the actual players and implementers of the legal system are sceptical or don’t believe in
the law, or feel that they themselves are bound by it, and it’s just a tool to control people to control aims/ends,
then law is losing it’s law-ness, and starting to turn in to something else. The rule of recognition is what gives it
legitimacy (but NOT morality).
FULLER
Questioning the Separation Thesis
No settled core of meaning, no penumbra
Judges interpreting law are making consistent with law’s purpose (and wider purpose of legal system, law, and
individual laws)
Fuller criticizes HLA Hart. He says – what is this psychological purchase/buy in, if not morality? Hart is just
trying to avid using the word morality, but is really the same thing he is saying. An “ought” claim is that people
follow laws because they think they are good. It would be a good thing, generally speaking, to follow laws, and it
would be good for society as most people are law abiding most of the time. If you describe it that way, you are
describing morality! Fuller says Hart never actually explains what he is saying – there is no explanation for what
he is talking about. What he is saying has no meaning.
Fuller says we should look realistically without vacuous talk of morality. What do we mean by morality? And
then what do we mean by the relationship between morality and law?
Morality has two distinct meanings: external morality and internal morality. External morality is the sense of
morality in the society at large. This is the idea of what most of us think of as good for ourselves, others, society
as a whole, most of the time. The things that we agree on as moral values. In reality, many laws have their origins
in social morality. That’s why they are laws, because they are things identified as having this quality and it was
felt this is important enough to be codified, and be given force and law in the legal system.
Furthermore, even though TA said law IS morality, there must be some general consistency between this
external social morality and law. If they are too far apart, law loses legitimacy. Need consistency.
Fuller is interested in the INNER morality of law. For a legal system to be workable, it must have stability and
order (similar to TA). In order to have a good working system that achieves order, it must look like a legal system
like ours – a democratic legal system. It has to have those features. In his story of Rex, the legal system did NOT
have these features and this led to chaos/disorder. These features that establish order also create goodness and
morality. Working legal systems then generate morality – therefore: the inner morality of the law.
He also talks about fidelity to the law. This is connected to the inner morality of the law. He is interested in the
players in the legal system. Both he and HLA Hart are concerned with these people, as are coming out of WWII
and want to explain what happened. In this case, they moved too far away from morality, and lost their true
fidelity to the true law – they lost their fidelity to the inner morality, and what we all owe. Fidelity to the law
doesn’t mean just to the words on the page – that is NOT fidelity. Fidelity is to the law’s inner morality and
goodness. If you are a player in the legal system, that is what you owe. Therefore, you must interpret and apply
the law in a way that is consistent with inner morality. If you stop doing that, you are neglecting your fidelity to
the world.
LAW AS RIGHTS
DWORKIN
Rejection of Hart’s penumbra and all positivist ideas
- Cases not covered by rules are covered by principles  judges apply and draw on principles (justice,
fairness) in process of legal reasoning
o Principles lead to new rules; Judging is crucial, how principles are “woven in”
- Right answers come from applications of principles – balance and give appropriate weight
o Constant evolution (chain novel) of law and the principles
For Dworkin, principles are as much a part of the law as the rules. Judges draw on principles to inform the law and
draw the rules. Judges changes the rule, interpret and inform the rule, with the principles making a new rule infused
by the principle. The principles aren’t above the law but part of the law. It is an recursive relationship
No HARD CASES! B/c no cases where law doesn’t provide the right answer – principles always apply, even if rules
don’t. In a difficult case, the judges discuss and evaluate the rules that apply, and if no rule applies, the principles do –
if the judges know what they are doing, they will apply the principles properly and arrive at the right answer  this
is legal reasoning!
Principles have weight, and rules don’t. Principles have different applications, so the judges have to weigh and
evaluate the principles that apply to the case, and then balance with rules, and then ALL TOGETHER weighted will
be the right answer.
What Dworkin says as principles are similar to the rule governed practice, and Fuller’s inner morality of law.
However, Dworkin has a separate idea and image of principles and their role in the law. For Dworkin, principles
ARE law.
Sometimes when law is being interpreted, principles become more or less significant to the interpretation
process as they are needed to figure out what the right law is in that situation. Law is always made up of rules
and principles, and sometimes when we are applying the law we need to look more closely at certain principles
to see what the law is, as the rules themselves don’t give us the answers.
A particular case can involve competing principles, and we have to know and understand how these principles
should be balanced and the appropriate weight they should be given in a particular case. If we are wise enough
and we do this, we will arrive at the right answer. There IS one right answer.
For Dworkin, the principles are dynamic. They are there and always part of the stream. The content of the
stream can change as it runs its course. What is happening the world, socially and politically, can alter the stream.
Every time the principles are interpreted by the cases, this also informs the principles as they move forward. It’s
a constant evolution. If we want to interpret the principles in a case, we have to understand them at that point in
time. It is a dynamic idea of principles in the law, and a dynamic idea of the law.
For Dworkin, law is a chain novel. Law is a united body that is changing over time – it comes from the past and
goes to the future. At any point it can look different. We can understand different cases as the different chapters
in the novel. But, remember the overarching theme – law is good! Each new chapter has to be consistent with the
theme, both looking back and heading in to the future.
DEFENCE OF LIBERTY AND PATERNALISM
When and why should the law interfere with private choices – when are restrictions justified?
Harm principle: restrictions on individual liberty to prevent serious harm to others
Paternalism: restrictions of individual liberty that protects that person from harm caused by own exercise of liberty
(Mill says NOT JUSTIFIED in general, OK for children/non-age)
MILL
Authority prevents anarchy but is inherently tyrannical, should be limited/controlled
- rights create safe zone/immunity
- need to have limits/individual independence to prevent tyranny of majority
Proper limits = Harm principle – protection of others; provided by society .:. owe obligation to society to contribute
to defence and not harm others
- Applies to ppl “mature facilities” (not children, backwards states, non-age)
- Allows liberty of thought, feeling, expression – can do what we want subject to consequences, even if others
think is wrong
Mills has a different focus than the different theorists, and the relationship between aw and morality. Mills
understanding of law is rules that constrain our freedoms. We should be concerned with how and why law
constrains freedom – and when can it be justified?
We need the state to be strong and powerful (the talons) to protect us against enemies. But at the same time,
this can be turned against us. Law protects us against itself. It uses rights to create an area of freedom in which
the state cannot penetrate, and others (the tyranny of the majority) cannot penetrate. Law has a role in
protecting us and our freedoms, but it also has the potential to crush or restrict our freedoms.
For Mill, constriction can be justified when it is preventing harm to others. Individuals know what is best for
themselves, so they can do what they want. But, the liberty principle does not apply to children, because they are
of non-age and don’t know what’s best for them.
Paternalism challenges Mill – some circumstances when interference with individual liberty justifies:
- Purpose is prevention of harm to that person or to third parties (interference is paternalistic)
 prevents long term or irreversible damage to person’s autonomy
Dworkin says: paternalism justified where
- Produce irreversible and destructive changes of liberty (autonomy) or self [ppl make irrational choices, may
not always know what is best for self]
- Decisions made under extreme psychological pressure; where risks not adequately understood (not freely
chosen by autonomous self)
Need proportionality b/t deprivation and restraint (consider significance of activity and whether are lesser
restrictive alternatives)
Dworkin justifies paternalistic responses in the law, by saying that it must do it to protect the individual’s
future liberty and autonomy. He is trying to articulate a theory of paternalism – which is consistent with Mill’s
theory (he says).
FEMINIST JURISPRUDENCE
No univocal/monolithic view, no one voice can represent everyone – many voices, many social realities
Rejection of universalist abstract theory (Dworkin, Law & Economics)
World is structured by patriarchy, law & norms reflect this
Presents itself as natural but is socially constructed to achieve purpose (Similar: CLT)
SMITH
Classic liberal: subordination creates “blocks,” equality = equal opportunity, gender blind
Modern liberal: meaningful/accessible equality, remove informal discrimination/stereotypes
Radical: solution is to reverse institutional structures of domination, reconstruct gender
Marxist: oppression due to class-based system, exploitation & profit, economic dependence
Postmodern: Rejects grand theory (similar Critical Race), multiple solutions, celebrate “other,” celebrate diversity
Relational: m&f are not similar, focus/acknowledge differences; change institutions to accommodate women
MACKINNON
Male POV is the “objective,” reasonable person
- recognize women’s reality is social/political institution
- recognize male power embodied as rights in law
- law reform: look at whether practice participates in subordination of women (neutrality as cloak of male
dominance)
Feminist theory asks us to evaluate laws from a critical perspective. Like critical race theory and critical legal
studies, ask us to think about law not in terms of abstract principles like justice, fairness, and morality. Rather,
think about the law in terms of power. Law is ultimately about power. If you want to understand law, you have to
understand power. This is because all social structures are about power. Laws are social artefacts, so they can't
help but be about power – because everything is about power.
Feminist perspective locates the power objective of society as the patriarchy. The ultimate power structure in
society is the patriarchy - they dominance of men over women and the perpetuation of this dominance. That is
what everything is about, including the law. Integral to the perpetuation of that dominance is making it look like
it’s natural, and not an artefact. The powers of the patriarchy themselves believe this, that is natural, but that is
NOT so. Once this can be realized, then it can be changed, and the law can be made to do other things.
Different feminist theorists have different ideas on how this change can be brought about. There is no
monolithic voice in the jurisprudence, but the most influential has been McKinnon. McKinnon has strong ideas
just about how the patriarchy works, and how they accomplished perpetuation of dominance in the legal system.
Once we realize this, we can do something to change it.
CRITICAL LEGAL THEORY
In fact, doctrine, like all aspects of law, is deeply embedded in the political structure of society (political in the broad sense, to encompass relationships
between persons), and that most significant aspect of political relations/institutions in society is power.
KENNEDY:
Challenge where law comes from: law and doctrines are political
Power structure – maintenance of those who have power vs. those who don’t
Critical Race Theory
Race is an “invention” – social construct (similar to Feminist Theory)
To understand = how this happens in peoples lives
Experience is crucial, autobiography perspective – can’t ignore impact
WACKS
Critiques Liberalism (Dworkin) – law is not a neutral story about neutral subjects / is white man
Understand race as social, cultural – acknowledge issues, include in discourse, change from within
Structural determinism – law has basis in power structure, pose as neutral/reasonable, actually powerful exerting
hiding their own interests (similar: Feminism)
No monolithic group that can speak for everyone (similar to Feminism)
Importance of storytelling, subjective accounts – lived experience vs. outsiders
Law is about power, because laws are an emanation of society, and society is a power structure- maintaining
and implementing power. There is no connection between law and morality, and people who talk about it this
way are then perpetrating the power structure by trying to make it look natural and good. Similar to feminist
theory, by saying that something is natural/inevitable. It is trying to make the law look like something that it’s
not.
Even if it looks like it is attacking the structure, it’s not. It is perpetrating the power structure, by LOOKING
this way. It is pretending to protect rights!
Like feminist theory, critical race theory comes out of these themes of understanding power. Everything can
be understood as being political, and being about power - including law. Feminist legal theory says patriarchy
was the ultimate power/objective. Critical race theory says the ultimate power is racism – the domination of one
race over the others. They do this to take stuff from other people. The ultimate objective is taking stuff from
other people, and getting things from other people, and making people do things for you. There is an apparatus
that is constructed to justify this, and that is racism. Racism, like the patriarchy, works, by pretending that it’s
natural. Pretending that there is a meaningful difference between people who have different physical attributes.
Really, it is NOT important at all.
Once we understand this power relationship, we can understand how the law factors in to this system. We can
then see places in the law where laws (rules) do this, and how the legal system and people within the system do
it.
LAW AND ECONOMICS
Law as efficiency, normative theory, good rules (laws) = maximize social wealth
- wealth: measurable satisfactions (not just money)
- social wealth: wealth spread amongst everyone in all situations/transactions
Humans rational, act rationally – decisions made in best interests
- Point of law is maximization of social wealth .:. law is tool to achieve
Pareto superiority: one state of affairs better bc more efficient
- At least one person is better off in A than in B, and no one is worse off
- One person prefers A and on one prefers B (at least one winner, no losers)
Achieved through win-win, or win-lose when loser is fully compensated (but winner still comes out ahead)
Pareto-optimality: reaches most efficient outcome possible when no more pareto-superior moves possible (but,
most transactions create inefficiencies)
Kaldor-Hicks Test: transaction “efficient” if overall benefit outweighs cost to X’s neighbours; if the gains to winner
are large enough that they could compensate loser, including third party costs, and leave profit for winner (overall
wealth gain through transaction- overall benefit to y is greater than x’s loss)
Regulations: makes certain ppl internalize costs (externalities), allows market to reflect real or total social costs
[revisit: Coase, torts, contract, etc]
The concern here is evaluating laws and deciding whether they are good laws or bad laws. Good laws have the
maximization of social wealth. Can then evaluate and change the law to be most efficient to maximize social
wealth. Social wealth is more than just money! It is what we value – what needs to be globally enhanced.
Law and economics theory relies on people being rational economic actors – this is also why it is criticized.
May have reasons for doing things that don’t depend on maximization of value.