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There are four general philosophical theories of jurisprudence, what defines the nature of law. The theory of natural law suggests that there are objective moral truths, which can be known or discovered via human reason, and that the law derives from these. Legal positivism does not support a connection between law and morality, instead viewing law as a human creation determined by contingent social facts. Theories of legal realism focus on the mechanics of legal decisions and how judges actually decide cases. The law as integrity contends that abstract legal principles are also a facet of the law, going beyond what is written in legal codes. Underlying these four theories of jurisprudence there are competing themes, such as objectivity versus relativity, concreteness versus abstraction, and what is versus what ought to be.
Classical natural law theory offers the most objective, and most abstract, interpretation of the law. Natural law, as described by Saint Thomas Aquinas (13), is bestowed by God “into man’s mind so as to be known to him naturally”, and human law is merely “an ordinance of reason for the common good” enforced by those who are so charged. Aquinas uses Augustine’s delineation of eternal law and temporal human law and describes how the abstract notions of justice, right, and common good, which embody eternal law, can fail to be upheld by human law. Natural law is therefore permanent and unchanging regardless of what laws happen to be enforced or not enforced at any given time. John Finnis (15) suggests natural law is the reason for positive law gaining the force of obligation, and talks about natural law existing without a history, except for a chronology of attempts to explain it. Jeff Johnson, discussing the theory of secular natural law, contends that there is a biological basis for instinctual cooperative behavior, or constrained utility maximization, which evolved through the natural process of kin selection. These different takes on natural law all characterize it as objective, and beyond human social circumstance.
Ronald Dworkin’s (86) theory of the law as integrity also embraces the notion of objective legal principles, which are distinguishable from rules by a connection to fairness and justice. Dworkin points out that there are “hard cases” that demonstrate legal principles at work, such as Riggs vs. Palmer, in which two out of three judges voted to deny a murderer his inheritance even though the statutes were technically on the defendant’s side. The decision in this case, according to Dworkin, stems from a sense of fairness that suggests people should not benefit from doing wrong. He argues that legal precedent binds judges to reasonable interpretations of past decisions in the way a contributing author for a chain novel is bound to a reasonable interpretation and continuation of the previous chapters that he did not write (93). A judge is duty bound to remain coherent in regard to past legal decisions. However, that does not preclude appealing to a broader notion of justice. For Dworkin, there can be an objectively right or wrong answer to a difficult legal question.
Legal positivists, like H.L.A. Hart (41), do not take nearly as objective or abstract a view of the law as natural law theorists, instead seeing it as a purely human social creation. Hart constructs a more relative model of the law, in which the “primary rules of obligation”, or a society’s expectations of one’s behavior, are turned into laws via secondary rules, such as rules of recognition, adjudication, change, and sanction. This view disconnects the law from morality in the sense that there must be a rule of recognition that exists to codify morals before they become actual laws. The rule of recognition for a society is simply the step a group takes to bring a pre-legal notion of social obligation out of the realm of uncertain observance, and into the realm of enforceability through general consensus. Legal positivism separates abstract notions of fairness and justice from what the law actually is. This delineation leads to a relativistic view of law, since something like a rule of recognition can come in many forms, depending on the society.
An even more relative and less abstract approach to the law is legal realism. As their moniker implies, legal realists feel that the law should be viewed for what it is actually observed to be. Karl Llewellyn (54) suggests that the business of law is the settling of disputes. He argues that what judges and other officiators actually decide when settling disputes is all that law is. Duncan Kennedy (62) presents a hypothetical situation in which a judge takes advantage of the complexity of the law by searching for a justification for the outcome he is predisposed to. Even after he was inclined to think that the law, as commonly interpreted, supported the opposite ruling. Jerome Frank (193) follows a similar line of reasoning when he says, “[t]he decision of a judge after trying a case is the product of a unique experience.” Martha Minow and Elizabeth Spelman (205), from the perspective of legal feminism, argue that the proper application of context is the best approach to law. They demonstrate through discussion of a Supreme Court case that each Justice did in fact come to a decision based on the context in which they put the case. Theories of legal realism appear to reject, almost categorically, an abstract and objective definition of the law.
It is where these four general legal philosophies come down on a continuum between abstract objectivity and tangible relativity that best illustrates their similarities and differences. However, there are subtler contrasts and comparisons that blur these more obvious distinctions. Both classical natural law theory and the law as integrity have a normative slant, however they differ on their explanation of what makes the law objective. Secular natural law theory, although keeping with an objective interpretation, is not a normative view, given the suggestion that there is a biological basis for law. Richard Posner (205) describes a realist take on the law that ties it to economics as its justification, with a systematic approach to how sanctions ought to be employed to maximize efficiency. Law and economics not only stands out as a less relative approach than its realist counterparts, but along with legal feminism it has a normative slant. The subtleness by which these different views are delineated is evocative of the distinctions between law and morality.
When I attempt to critically assess which of these theories best describes what the law is, based on the evidence, I find it extremely difficult to do without bias. I have limited direct knowledge of the legal process, but my singular experience in small claims court as a plaintiff is an appropriate anecdote that expresses my dilemma, and perhaps a general dilemma with defining the law. It began when I foolishly left about $3,000 worth of music equipment with a drummer I had recently met through a mutual friend (I used to play guitar in rock bands). Several factors led to this poor decision. I did not have a car and the mutual friend whose truck was used to cart my equipment over wanted to leave immediately after we stopped jamming. Also, I was under the impression we would be jamming again soon and it had been typical for me to leave equipment with drummers in the past. The drummer did not object and, since he lived with his parents, I assumed it was safe. However, the drummer avoided me after that, and without a car I was unable to get my equipment on my own. A couple of months went by before I pinned him down, and that’s when he confessed to selling my music equipment to the guitar store five blocks from my house.
I immediately filed a small claims law suit, but when my day in court came, I lost. The defendant claimed that I abandoned my equipment, and he was forced to sell it because it was taking up too much space in his house, and the judge agreed with him that it was wrong of me to leave my music equipment behind. The judge did not want to see the mobile phone records I brought to show my multiple attempts to contact the drummer, nor the statutes that I printed out discussing the laws regarding abandonment. The judge asked the drummer why he did not just drive the equipment to my house himself if it was in his way, since he worked nearby me, instead of what he did do, drive to a music shop five blocks away from my house, to trade my stuff for store credit. The drummer answered-I kid you not-that he guessed it was because he was angry with me, and he didn’t like me. Perhaps I lost due to testimony from the defendant’s father, who untruthfully said that he witnessed me being told, under no uncertain terms, that his son and the other musicians thought I sucked at guitar, and that I needed to take my equipment with me if I wanted to keep it. The judge did rule in my favor on one point, that the drummer should return the equipment of mine which was still in his possession, but then the judge had the audacity to say the transaction needed to go through a third party because he feared I would not agree with his primary ruling, and he thought I would make some attempt at revenge or vigilantism.
My admittedly biased view, as illustrated by my unfair loss of property and sense of justice unfulfilled, could easily lead me to sympathize with legal realists. Regardless of how angry I was over the ruling, I did not attempt to take the law into my own hands. I did not even appeal the decision, even though I suspected the only reason the ruling went down the way it did was because the court was located in a small town, and it was possible that the judge knew the defendants family personally. Regardless of what really made the judge decide against me, it must have had something to do with the context he put the case in. It sure did not feel like justice to me though. Nonetheless, I recognized the judge’s authority and hoped that my future experiences with the legal system would not be as disillusioning. This example gives me a compelling reason to view the law as a realist, in the sense that what the law is, is just what judges decide it is.
Regardless of my cynical experience with litigation, I do not think legal realism is a complete theory of the law. There may be some truth to Frank’s assertion that there is a uniqueness that informs each judicial decision, but that does not mean each judicial decision should be unique, or is substantively unique in regards to legal consistency. Besides, I have to believe that most judicial decisions are more coherent with respect to their adherence to legal norms and precedents than they are individually special. I think that the judge in my case acted arbitrarily and without coherence to the written law, however, I still accept his authority to rule. If I thought that the whole system of law was arbitrary because all judges ruled every time in this manner, then I would feel much less obligated to respect the law in the future. I join Dworkin (98) in rejecting legal realism, and agree with his characterization that the judges are not just “…independent architects of the best future, free from the inhibiting demand that they must act consistently in principle with one another.” Therefore I rank legal realism fourth against the alternatives, as an accurate depiction of the law.
The rejection of legal realism might lead me to legal positivism. I am compelled by Schauer’s (105) remark that “positivists observe that most of the things people call laws exist in a moderately limited collection of books….” Prior to bringing my own law suit I had studied my state’s rules governing abandonment, and I found that there were provisions for a ninety day holding period and a requirement for the drummer to notify me via certified mail. There was even a portion in the rules that indicated the correct method for disposing of abandoned items through particular channels. I thought this did not speak well of the drummer’s decision to trade my music equipment for store credit in order to obtain new percussion gear. These rules began with the premise that I actually abandoned my things, which I did not. Not only did I think I had justification to bring the suit, but I truly believed I would win. I still don’t think the judge followed the legal rules in the end, but that does not mean that rules are not part of the law.
Llewellyn characterized rules as merely administrative, and therefore not descriptive of law due to their inherent failure to keep up with a widening scope of disputes. A realist could argue that the judge in my case decided that the abandonment rules did not apply because they only cover landlord and tenant situations. Therefore I was a unique case. I agree partially with this view because it accurately describes rules as insufficient for a complete definition of law, but not unnecessary. Written rules are not just useful for administration, but help to illuminate the law and its application so that people are not unwittingly breaking it. At the very least rules act as a skeleton of law. For example, I failed to take advantage of a rule of arbitration to appeal my suit to a higher court and, if I am correct about the local bias of my first judge, the original decision may have been overturned if I had appealed. However, I think rules of adjudication act as a loophole for judges to sidestep the rule of recognition, for good or bad. I rank legal positivism third because it also fails, like realism, to sufficiently explain the law.
Dworkin’s inclusion of legal principles, and the existence of objectively correct answers to hard cases, gets much closer to what the law is. Laws and judicial rulings must be justified in order to carry the complete force of law, which includes a general respect for it by the community it is to serve. Fairness and justice are abstract moral ideas and not easily measured. However, they are concepts that directly influence and justify the law much more than general morality. Dworkin’s description of the law as integrity adds the element of objectivity that is lacking in the realist and positivist views, but I still rank it only second against all the alternatives. Dworkin admits that his theory is very reminiscent of natural law, except rather than the divine, he offers the coherent interpretation of legal precedent as the source of objectivity in the law. I generally agree, but still think that there is more than precedent and principles at the core of the law. I find it very unlikely that precedent or principles, at least ones that I agree with, played a deciding role in my case and it certainly does not explain my strong sense of injustice after the ruling.
It is not that I have rejected legal realism, legal positivism, and the law as integrity as all-together incorrect concepts of law. They are all necessary for a comprehensive view of what the law is, but even taken together I do not consider them sufficient. This leaves me with natural law theory, and in fact I think it is Johnson’s secular theory of natural law that offers the most complete legal theory. The idea that there is a biological basis for the law as a result of human evolution into constrained maximizers for survival purposes fulfills the last necessary condition for a theory of law. With secular natural law, the evolution of precedent takes on a new context. Rules and legal principles change slowly over time through legislation and precedent, yet remain coherent and justified through their relationship to the social contract. I observe the law because I value cooperation over anarchy. I recognize it as a better path to my thriving, and I believe that most of my fellow citizens agree with me in the same sense. This is why I did not take the law into my own hands after losing my suit. The biological impulse to follow the rules steered me straight because my fear of potential legal punishment is inherently tied to my evolved and rational fear of being socially ostracized, reinforced by my recognition that my punishment is justified from an abstract perspective without personal consideration.
Jared Roy Endicott
Works Cited
The Philosophy of Law: Classic and Contemporary Readings with Commentary. Frederick Schauer, & Walter Sinnott-Armstrong (Eds.). New York: Oxford University Press, Inc., 1996. Print.
Johnson, Jeffery L.. “Biologically Based Secular Natural Law”. Paper presented at Northwest Philosophy Conference, Portland, OR, Oct 2003. Web.