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图书目录:PREFACE
ACKNOWLEDGMENTS CHAPTER ONE The Natural-Law Approach to the Concept of Law I THE FUNDAMENTAL QUESTION OF JURISPRUDENCE Philosophical debate about the concept of law dominated by Legal Positivism and Natural-Law Theory (1). Separation Thesis the linchpin of Legal Positivism (1-2). Denies that criteria of legal val- idity must include a moral component (2-3). Correlates with Fallibi- lity Thesis, Critical Citizenship Thesis, and Sources Thesis (3). Central contention of the book: the Separation Thesis is wrong (4). Legal Positivism and Logical Positivism Warning against uncritical use of labels generally, and of label "positivism" in particular (4). Logical Positivism supports Separ- ation Thesis, but latter may have different epistemological founda- tions (5). Three axioms and five theorems of Logical Positivism (6-7). II THE NATURAL-LAW APPROACH A. The Conceptual Connection Between Law and Morality Rejection of Separation Thesis defines Natural-Law Theory; legal validity depends upon consistency with an essential moral require- ment (EMR); a necessary connection between law and morality (8). Necessary vs contingent connections (8-9). Conceptual vs logical and natural necessity (9). Some confusions arising from misinter- preting the conceptual connection between law and morality (9-10). B. The Essential Moral Requirement and the Moral Variables EMR variables (effect, substance, scope, level, mode, comprehensive- ness) allow variations in Natural-Law Theory (11-12). Natural-Law Theory per se not committed to view that immoral rules cannot be laws, though committed to view that inconsistency with EMR fatal to legal validity (13). C. Is this Natural-Law Theory? Two interpretations of "vulgar" account of Natural- Law Theory: the first, legal validity hinges upon consistency with EMR; the second, immoral rules cannot be laws (13). First interpretation matches our characterisation of Natural-Law Theory per se; second matches our own version of Natural-Law Theorv (14). Finnis' pos- ition read as rejection of vulgar account in both interpretations (14-17). Finnis must accept first interpretation to contest Separation Thesis (17). Jenkins' "reconciliationist" view espouses Separation Thesis (17-18). D. Natural-Law Theory and the Is/Ought and Fact/Value Distinctions Standard interpretation of Humean Is/Ought distinction (18-19). Correct interpretation of Humean principle is that moral "ought" can be validly inferred only from moral "'is" or moral "ought" (19-21). Natural-Law Theory need involve no violation of this prin- ciple (22-23). Denies "fact/value distinction," the view that there is no moral"is": legal facts are moral facts (23). E. Natural-Law Theory, the Legal, and the Moral Distinctions between "Moral" and "Non-Moral"; between "moral" and "immoral" (23). Moral Reason characterised in terms of justifi- catory force, unversalisability, and categoricality (23-25). "Moral" divides into "moral" and "immoral" (26). Idea of moral action ambiguous between requirement and permission (26-27). Moral Reason applies to all voluntary purposive action (27). Distinctions between "Legal" and "Non-Legal"; between "legal" and "illegal" (27-28). Natural-Law Theory holds "Legal" conceptually tied to "Moral", "legal" to "moral", "illegal" to "immoral"; such ties denied by Separation Thesis (28-29). Our conventions concerning use of upper and lower case in respect of M/moral and L/legal, and their deployment in the book (30--31). Distinction between descrip- tive and prescriptive characterisation of action as M/moral (31). III OUTLINE OF THE BOOK CHAPTER TWO The Arguments Against Natural-Law Theory INTRODUCTION Chapter contends that stock arguments fail to show Legal Positi- vism to be either theoretically or practically superior to Natural-Law Theory (37). Deficiencies in stock natural-law arguments against Legal Positivism (37-39). Concern of chapter is with concepts, not word-usage (39-42). I THE PRACTICAL SUPERIORITY ARGUMENT Section contends that arguments alleging undesirable practical attitudes (read as entailments or tendencies) fail against Natural- Law Theory per se (42-43). A. Arguments of Entailment (i) Revolutionary attidues Natural-law thesis that there is moral obligation to comply with legally valid rules does not entail that there is moral obligation to disobey legally invalid rules (43-45). Compliance with immoral rules may be required as lesser of two evils (45-46). (ii) Reactionary attitudes Natural-law thesis that legally valid rules are morally binding does not entail reactionary view that every rule claimed to be legally valid is morally binding (46). Raz's retort that this disqualifies "obvious laws" from legal status is question-begging (46--47). (iii) Inconvenience Rejection of Hart's view that Natural-Law Theory entails that immoral rules must be treated as beyond ambit of legal science (47-48). If moral principles are relative, Natural-Law Theory makes legal science impossible; denial of Kelsen's view that this supports Legal Positivism (48-49). (iv) Oversimplification Rejection of Jenkins' charge that natural lawyers ignore the problem of "the gap between rules in the book and actual practice," Grif- fith's charge that they fail to address the real world, and Hart's charge that they oversimplify complex moral issues (49 -52). B. Arguments of Tendency Speculative nature of Hart's allegation of reactionary tendency in Natural-Law Theory (52-53). Matrix of tendency argument (53). Tendency argument must be grounded in theory of ideology. This requirement cannot be by-passed by "Conjunction Thesis" or by "Compatibility Thesis" (54-55). Some problems attending construc- tion of a theory of ideology (56-57). Natural-Law Theory and moral controversiality: controversiality does not assist tendency argument (57-58); routine legal practice not jeopardised thereby (58); contrary to Austin, no inherent tendency to present anarchic threat to "wise and benign rule" (58--61). II THE THEORETICAL SUPERIORITY ARGUMENT Simple appeal to fact/value distinction is question- begging (61-62). Rejection of Finch's claim that Natural-Law Theory confuses descriptive and prescriptive laws (62n). (i) Natural-Law Theory must be incorrect because it employs the theoretically unsound idea that individuals have "natural rights" Consideration of Hare's contention that Natural-Law Theory employs an intuitionistic method to ground appeal to natural rights, and that Legal Positivism facilitates his own moral methodology and preference utilitarianism. Natural-Law Theory per se wedded neither to natural rights nor to intuitionism; though our own theory involves natural rights, our methodology is not intuitionistic (63-67). (ii) Legal Positivism correctly explicates and systemises distinctions embedded in conventional thinking about law Rejection of Austinian "inconclusiveness argument." Natural law- yers do not deny that evil rules claimed to be law are ever enforced, nor that Legal Positivism allows evil rules to qualify as legally valid (67-68). Inconclusiveness argument linked to conventional base of Hartian jurisprudence in which correspondence with the conven- tional framework of legal thought is criterion of conceptual ade- quacy (68-69). Consideration of Hart's claim that Austinian Positivism and American Realism fail this test (69-70). Raz's presen- tation of Sources Thesis as explication of structure of conventional thinking (71-73). This type of strategy is defective because it may involve a question-begging selection of reference group for the "conventional view," and because fit with contingent conventional understandings is no test for the concept of law (73- 75). (iii) Legal Positivism correctly identifies the distinctive form of social control and social co-ordination to be found in the institution of law Analysis of Raz's argument that Sources Thesis captures a funda- mental insight into function of law: Raz begs question by presum- ing processes generating law may be viewed in morally neutral way (75-77). Rejection of Raz's and Hart's "objection to the hetero- geneity of law" (77-79). Four assumptions underpinning the Hart/ Raz methodology (79). This methodology ("extensional analysis of denotation") begs the question against Natural-Law Theory (79-82). SUMMARY CHAPTER THREE Conventionalism and the Concept of Law INTRODUCTION The arguments of Chap. 2 raise the question of the rationality of debating the concept of law, and point to the need to consider the methodology of concept-formation. I CONVENTIONALISM According to, e.g. Frank and Williams, concepts of law are merely stipulations (83-84). This is the viewpoint of conventionalism (Golding) (84), and entails that preferences between concepts of law cannot be made rationally. No adequate response to this position has been made in legal philosophy. Via consideration of the views of Golding and Finnis, we contend that conventionalism can only be rebutted by treating concepts of law as transcendental concep- tions (84-86). II GOLDING AND "MODIFIED ESSENTIALISM" Golding's three views of concept-formation: essentialism, conven- tionalism, and modified essentialism. His definition of essentia- lism; and an example of an essentialist definition of a legal system. His definitions of conventionalism, and of modified essentialism (his own view) (86-88). Preliminary statement of the basis upon which he criticises essentialism (88-89). Golding's modified essen- tialism by and large the same as Sartorius' view that a concept of law is a reportive definition of the word "law" exhibiting a cluster concept pattern (Putnam). Golding's rejection of essentialism corresponds to Sartorius' rejection of "real definitions" (89-91). Golding's rejection of conventionalism: philosophers of law debate reportive definitions which have a truth-value and are capable of reasoned defence (91-93). III CRITICISM OF MODIFIED ESSENTIALISM Six points upon which we agree with Golding (93-94). Golding's arguments successful against simple conventionalism (all defi- nitions are stipulative), but not against epistemological conven- tionalism (all primary definitions are stipulative) deriving from empiricism or pragmatism (94-96). Modified essentialism compat- ible with epistemological conventionalism, as is Golding's "essen- tialism" ("linguistic" essentialism) (95-97). Adoption of modified essentialism may even be due to espousal of epistemological con- ventionalism. Rejection of epistemological conventionalism requires a different approach (97-98). IV JOHN FINNIS AND THE VIEWPOINT OF THE PRACTICALLY REASONABLE PERSON Finnis' view intentionally well-directed against epistemological conventionalism (98-99). His views on the concept- formation of Austin, Bentham, and Kelsen (99-100). His criticisms of the concept- formation of Hart and Raz. They correctly analyse law in terms of its practical significance, and differentiate more central from less cen- tral cases of law. But the central case of law to be identified by adopting the viewpoint of the practically reasonable person. Hart and Raz arbitrarily refuse to differentiate a practically reasonable viewpoint within viewpoints on practical significance (100-103). V CRITICISM OF FINNIS Comparison of Finnis with Golding-Sartorius (103-104). Finnis' view a break from the view that concept-formation is to be based on word-usage or the rationally undifferentiated viewpoints which word-usage may represent. Interpretation of Finnis' view as the for- mation of a conception of an agreed field according to criteria of 7uy practical reasonableness (104-106). Although Finnis' strategy suc- ceeds in pointing out internal inconsistencies in Hart's position, it begs the question if read as a categorical critique of Legal Positi- vism. It assumes that a moral point of view is the only practically reasonable stance (106-108). This is precisely what has to be proved: for Hartian concept-formation ("extensional analysis of deno- tation") presumes otherwise (108-109). VI TRANSCENDENTAL ESSENTIALISM Formation of a conception of an agreed field (concept) viewable as an exercise in real definition. It mav consist of extensional analysis of denotation (Hart), or "intensional analysis of connotation" (Fin- nis) (109). In order for the latter not to be question- begging in form- ing a concept of law, it must be shown that a moral point of view is logically presupposed by any practical viewpoint. Such an argu- ment develops a transcendental conception of law, and its methodo- logy is that of "transcendental essentialism" (110-111). Comparison of transcendental essentialism with Finnis. Although both views hold that a concept of law is an ideal type, if a moral viewpoint is essential, a fact/value distinction in regard to legal facts must be denied, and only the central or essential case of law has ontological import: immoral rules cannot be laws. These implications denied by Finnis (111-115). The epistemological premises of transcendental essentialism: broadly those of the Kantian wing of traditional epis- temological rationalism (115). Distinction between viciously and non-viciously circular arguments made by transcendental essentia- lism (115-116). Transcendental essentialism the only path to avoid epistemological conventionalism, and the strategy employed in the constructive sections of this book (116--117). SUMMARY CHAPTER FOUR A Transcendental Argument for a Natural-Law Theory INTRODUCTION Aims of the chapter: in particular, to show that the concept of law is the concept of morally legitimate power (119-120). I THE ARGUMENT To specify the presuppositions of conceiving of a problem of social order is to provide a transcendental conception of law (120-121). Legal Positivism and Natural-Law Theory differ essentially on what such a conception presupposes. On the supposition that a set of human interests must be presupposed, the positions differ on their content. Natural-Law Theory, but not Legal Positivism, holds that moral interests are necessary. To argue for this is to argue that social ordering must be conceived in terms of practical reason, and that this presupposes moral reason (121-126). Definition of moral reason (126). Gewirth's argument for a supreme moral principle an argu- ment for a presuppositional link between practical and moral reason which fits the requirements of transcendental essentialism (127-128). His definition of action (128--129). His "dialectically necessary method" (129). His argument: Anyone who acts for a pur- pose must assent to the PGC, the supreme moral principle, "Act in accord with the generic rights of your recipients as well as of your- self" (129-133). Defence of the argument against two objections: that it cannot justify an other-regarding attitude: and that it illicitly supposes that agents must treat reasons for actions as justifications (133-136). Three confusions about the argument which must be avoided (137). A discursive overview of the argument (137-1.41). Five general observations upon the argument: The material nature of the PGC as compared with other egalitarian principles (141); The way in which the argument secures moral reason as a presupposi- tion of practical reason (141-143); The argument misconstrued as a derivation of moral "ought" from non-moral "is"; it involves a cir- cular but non-question-begging move from moral "is" to moral "ought" (143-144); The argument not an argument from self-inter- est (144); The argument does not identify morality with logic (144-145). II MORALLY LEGITIMATE POWER AS AN IDEAL-TYPICAL CONCEPTION OF LAW No explanation of phenomena of law can be adequate if it conflicts with the transcendental conception of law (145). Explanations in terms of reasons for action require a rationally unified set of human interests (145-146). Given our transcendental argument, such unifi- cation can only be achieved if moral interests are regarded as real interests determined by the prescriptions of the PGC (146-147). Thus, explanations in terms of reasons for action rest upon moral judgment in terms of the PGC (147). The ideal-typical case of the Legal Enterprise is where its activities are morally legitimate. Illegit- imate activities are to be explained.causally as deviations from the ideal-typical case. Since identification of the ideal- typical case requires moral judgment, such explanations also require moral judgment (147-149). Summary of the argument (149-150). III NATURAL-LAW THEORY, LEGAL POSITIVISM, AND MORAL RELATIVISM Assumptions which guide the argument (150-151). The taxonomy of behaviourist Legal Positivism, Hartian Legal Positivism, and Natu- ral-Law Theory (151-152). Belief in absolute moral principles not itself belief in Natural-Law Theory (152). Harris' definition of classi- cal Natural-Law Theory (152). This definition fits the objectivistic Natural-Law Theory argued for in this book (152 & 156n). However, as we use the term "Natural-Law Theory", Natural-Law Theory is, in principle, compatible with moral relativism in a form ("moral scepticism") which does not derive from amoralism. Only moral relativism which derives from amoralism (either "moral agnosti- cism" or "moral nihilism") necessitates Legal Positivism (152-155). Complete taxonomy of the Legal Positivism/Natural-Law Theory dispute in terms of conceptual relations between law, practical reason, moral reason, and substantive moral principles (155-156). CONCLUDING REMARKS Possible inconclusiveness of our argument does not support Legal Positivism. An equal onus of proof in the conceptual debate. Argu- ments for Legal Positivism based on Logical Positivism have the paradoxical consequence of trivialising the debate (157-158). CHAPTER FIVE The Nature of Legal Order INTRODUCTION Summary of the principal propositions of our theory (159-164). I THE IDEA OF LEGAL ORDER (1) A Legal Order is a Moral Order The "Legal" must be defined in terms of the "Moral" (164). The categories of Moral/Legal optionality, requirement, and prohibition (164-165). Only an aspectual distinction between the "Legal" and the "Moral." Rejection of any distinction based upon content, source, or administration of rules (165-169). The concept of the "Legal" tied to the permissibility of enforcement employing nega- tive sanctions (169-170). (2) Defining a "law'" and a "'legal order" A law is a rule which it is Morally legitimate to posit for attempted enforcement (170--171). (i) THE TERMS "A RULE," "A NORM," AND "POSITIVE" Definitions of these terms (171-172). (ii) "ENFORCEMENT" Types of power-plays (channelling strategies) (172- 173). In our defi- nitions the permissibility of enforcement refers specifically to the usability of negative sanctions (173--174). This does not disqualify non-duty imposing rules from being laws, even though no rule can be a law unless there is an obligation to obey it (174- 175). Criticism of Kelsen's definition of enforcement in terms of "non- psychic coer- cion" (175-176). (iii) "a MORAL RIGHT" A rule can only be a law if no wrong is done in positing it for attempted enforcement (176). The relationship between authority and content conditions, and Fuller's "inner morality of law" in this requirement (176-178). (a) The Authority and Content Conditions Two kinds of conflicts which create a need for the Legal Enterprise (178). In order to resolve these conflicts, the PGC must justify the delegation of authority (179). However, this does not imply that rules with immoral norms can be laws (179-180). Indirect (delega- tion) applications of the PGC can only transform permissions to requirements or obligations (180). (b) Act moral rights and Agent moral rights as aspects of Act Morality In the direct applications of the PGC, the authority condition is ful- filled by the content condition, and the concept of a moral right to posit a rule for attempted enforcement is the concept of an act moral right. But to consider the definition of a law under direct title is to abstract from the requirements of the human social condition. There is a need for delegation which raises the question whether it is cor- rect to define law, under indirect title, in terms of act moral rights (180-181). An ambiguity in "A does no wrong by doing X" gener- ates a need to distinguish agent moral rights from act moral rights. The former attend to mens tea considerations, the latter do not. Agent moral rights, but not act moral rights, do not rest on the mor- ality of norms posited (181-182). Ambiguity in " 'Ought' implies 'can' " generating a parallel distinction between act and agent obli- gations (182-183). Agent moral rights to posit rules for attempted enforcement subject to conditions of "good faith" (183- 184). Rational defensibility of rules distinguishing objective from merely subjective agent moral rights (184). Rule-positing may be Legally valid at the level of attempt without positing laws (184). Agent moral rights cannot define laws because of the analytic and episte- mological primacy of act moral rights (185). Act moral rights define theoretical authority and laws. Agent moral rights define practical authority and laws for practical purposes. Objective agent moral rights and "provisional laws." Subjective agent moral rights and "subjective laws." The position of official authority to be dis- tinguished from the exercise of practical authority (185--186). (iv) LAWS IN RELATION TO LEGAL ORDERS Legal orders and attempted legal orders. Provisional legal orders. Orders are only Legally valid systems when all their relations are Morally legitimate at the level of achievement. The number of sys- tems which may be classified as Legally valid not a criterion of con- ceptual adequacy (186--187). The relationship between laws and laws for practical purposes modelled on a Natural Science analogy. This relationship does not present a dual ontology (187-188). Dele- gation does not define a legal order, but is necessary for attempts at legal ordering to be valid at the level of attempt (188-189). (3) Variation in the normative content of legal orders PGC a general principle, not a context-bound rule. Yields answers to Moral questions according to the circumstances; thus permitting different rules to be laws under different circumstances (190). Moral optionality permitted by the PGC as a further source of possible variation in laws (190-193). Distinction between laws and Laws (193). - (4) Functions associated with enforcement Agencies identified in Golding's example of an "essentialist" defi- nition of a legal system do not define such a system. However, all the functions associated with these agencies are conceptually tied to the concept of enforcement of rules, and thus have definitional status. In considering whether or not a Legal order must have rules of change, a distinction must be drawn between basic and deriva- tive rules (193-196). (5) The structural differentiation of legal orders Legal Orders structurally differentiated according to the types of delegation they employ (196-197). Types of delegation procedures (198). Rationality of a particular type depends on the social circum- stances (199). Delegation involves a sacrifice of personal autonomy which can only be justified if authorities are accountable (199). Authority only actually delegated if rational under the PGC. PGC constitutional principle of any legal order. Distinction between Constitutional1 and Constitutional2 rules (200). A Comparison with H.L.A. Hart Hart's depiction of the move from "pre-legal" to "legal" order as the move from a system with only primary rules to one with secondary rules (200-203). Points of similarity with our view. But Hart's por- trayal, in fact, a move from one type of Legal Order to another (203). Hart's pre-legal order employs a secondary rule of recognition (203-204). It employs rules of change (204). Tendency in Hart to assume a consensus over norms (205). Reactionary nature of Hart's analysis, if "authority" interpreted Morally, avoided by our theory. Reaction avoided by Hart only by switching his initial analysis of "authority" (205-206). Hart's view, unlike our own, ties Legal Ordering to delegation and division of labour (206). Rationality of the move to "legal" order depicted by Hart in purely prudential terms (206). Corollary (a): Sta~e and non-State Legal Orders Definition of a state (207-208). Legal Order not necessarily a state order. Comparison with Fuller. on this point (208-209). Corollary (b): The Reciprocal Nature of Legal Ordering A legal order is a community of friends (209-210). Corollary (c): National Legal Orders and International Legal Orders When commerce exists between nations, the notion of national legal sovereignty is a contradiction in terms. Corollary (d): Effectiveness, Validity, and Positivity Effectiveness a condition of stable positivity, not of Legal validity (210-211). Corollary (e): Legal Obligations and Legal Rights Legal obligations are moral obligations; legal rights are moral rights. Obligations to obey immoral rules are collateral not direct. Obligations under practical and official authority are internal col- lateral. Special case of provisional obligation. Defeasibility and reviewability of obligations in relation to types of authority. Exter- nal collateral obligations may exist when there is no authority. This is neither a reactionary nor a revolutionary thesis, despite the revol- utionary nature of the PGC-ideal (211-213). II LEGAL ASCRIPTION (1) A Legal Ontology Distinction between positive and non-positive law. All law is natu- ral law. Distinction between ideal and non-ideal law. Distinction between necessary and optional law (213-214). Institutional and non-institutional references of the term "law." Ehrlich's "Living Law" (214). (2) Types of Legal Ascription and Senses of "Law" Pre-theoretical, generic, and specific senses of "law" (214-215). Only the specific sense employed by our legal ontology (215). Primary vs secondary senses, vs types of ascription (direct, indirect, transferred, bracketed (or hypothetical), critical, dogmatic) (216-217). Limits on the permissibility of the idea of law existing in secondary senses (217-218). (3) Partial Legality Limits on the permissibility of the idea of partial legality (218--219) CONCLUSION Remarks on the systemic nature of the presentation in this chapter (219-220). CHAPTER SIX Kelsen's Pure Theory of Law: Is Law as a Moral Judgment Compatible with Legal Positivism? INTRODUCTION Two points of similarity between Kelsen's view and our own. But Kelsen thought to be a legal positivist, despite holding that norms can only be held to be legal if it is presupposed that they ought to be applied and obeyed. This is either inconsistent or challenges our analysis of the taxonomy of the Legal Positivism/Natural-Law Theory dispute (221-223). General problems of interpreting Kelsen. Structure of this chapter (223-224). I A SUMMARY OF THE MAIN THESES OF THE PURE THEORY II KELSEN'S DOCTRINE OF INTERPRETATION: AN INTRODUCTION AND PRELIMINARY INTERPRETATION Kelsen's view of causal interpretation (superficially similar to Kant) distinguished from subjective and objective (which is required for legal interpretation) normative interpretation (227- 228). His defi- nitions of "a norm" and "ought" (228-229). His two levels of norma- tive interpretation: investment of subjective or objective meaning to "ought"; the making of a subjective or objective value-judgment (229-230). A preliminary interpretation of his view of interpreting an "ought" as an objective meaning: such interpretation analyses "ought" in terms of "exclusionary reasons"--it views "ought" as moral "ought"; authorisation by a higher norm provides the reason for the objective validity of this "ought" (230-231). Legal orders dis- tinguished from purely moral orders by the coercive nature of the former (231-232). Authorisation according to static principle vs authorisation according to dynamic principle (232-233). Formal vs material authorisation. Objective vs subjective reasons for regard- ing an authorised norm as binding (233--234). Material authorisation requires a norm to be derived from a true or accepted higher (basic) norm (234). Kelsen's moral relativism places the burden on the notion of acceptance (235). Presuppositional nature of the relation- ship between a basic norm and the norms it validates: relation essentially hypothetical, dialectical, and logical (235-236). Also defi- nitional: a basic norm unifies norms as norms of the same order; validates a delegation structure, and is its "logical" constitution (236-237). On this analysis, Kelsen should be a relativistic natural lawyer (237-238). His positivist intentions are either inconsistent with this, or threaten our analysis by implying that moral scepti- cism entails Legal Positivism (238-239). III KELSEN'S LEGAL POSITIVISM Key propositions of Kelsen's Legal Positivism: moral- neutrality, moral formalism, exclusion of positive invalidity. Four themes in which this is elucidated (239-240). (a) Positivity, Effectiveness, and Legal Validity Kelsen's "middle-road" between "idealism" and "realism," his conditioning thesis: effectiveness and positivity conditions of, but not reasons for, legal validity (240-242). Relations between condi- tioning thesis, exclusion of positive invalidity, moral formalism, and basic nature of the basic norm (242-243). Criticism of condition- ing thesis. His argument makes factually incorrect claim; and con- tradicts his notion of an objective norm (243-244). Effectiveness a condition of stable positivity; but Kelsen has no non- question-beg- ging argument for converting this into an argument for the condi- tioning thesis (244-245). " 'Ought' implies 'can' " does not support conditioning thesis. To portray it as a support involves equivocat- ing over meaning of "positive" (245-246). His analogy between a solution to "might/right problem" and conditioning thesis no sup- port for the latter (246-247). (b) Kelsen' s Moral Relativism Kelsen rejects Natural-Law Theory as reactionary, and on ground that it requires untenable moral absolutism. Argument for reaction illicitly imports positivist concept of law into natural-law reasoning (247-248). His arguments against absolutism misportray this pos- ition, and his adherence to emotive theory of ethics incompatible with the doctrine of presupposition (248-252). Moral relativism held to entail moral formalism (252). Moral formalism ambiguous between Legal Positivism and relativistic Natural-Law Theory. Legal positivist interpretation only supported by moral relativism by violating modus tollens (252-254). Moral relativism not shown to support Legal Positivism because not shown to exclude relativistic Natural-Law Theory (254-255). (c) The Non-Prescriptive Nature of Legal Interpretation by the Science of Law Kelsen's view is that description of law does not rest on prescrip- tion. His view that jurisprudential interpretation does not create law irrelevant as an argument for this (255). His distinction between a "rule of law" and a "legal norm" pivotal in his position (255-257). Relativistic Natural-Law Theory threatens the possibility of an objective legal science. Objectivity can be rescued by constituting the object of legal science through transferred or hypothetical ascriptions of moral legitimacy (257-258). Kelsen's rules of law, descriptive statements made by the "science of law," are hypotheti- cal ascriptions of moral legitimacy. These are truth- determinate and morally neutral (258-259). Kelsen claims that this descriptive activity presupposes the basic norm. The position of Natural-Law Theory is that it hypothetically supposes presupposition of the basic norm, taking hypothetical law, not law, as its object. Law can only be made the object of legal ascription by adopting an objecti- vistic Natural-Law Theory or by abandoning the doctrine of pre- supposition in a form which analyses objective validity in terms of exclusionary reasons (259-263). (d) Kelsen's View that There are No A Priori Limits on Norm- Creation Contrast between Kelsen's view of the basic norm as the basis of legal validity and the natural-law view that a theory of political mor- ality (PTM) fulfils this function. Latter view imposes a priori limits on validity of norms: law-creation basically an exercise of weak, not strong, discretion. In objectivistic Natural-Law Theory, limitation is additionally by principles knowable a priori. Both theses denied by Kelsen (263-265). Kelsen's discussion of the ways in which norms of a legal order can conflict. Nullity only the highest degree of annulla- bility. But, this view depends on Legal Positivism: not an argument for it (265-267). The philosophical method used by Kelsen to derive the basic norm. Kelsen's notion of the "unquestionability" of the basic norm is either a reactionary thesis or question- begging in tak- ing the views on law of legal positivists as the base- line for consti- tuting the object of legal cognition (267-271). His derivation of the object of legal cognition modelled on Kant's analytic method of presentation; but claims are made for its results which can only be justified by a Kantian synthetic method which Kelsen eschews (271-272). IV AN OVERVIEW Kelsen's Pure Theory of Law an inconsistent attempt to steer a middle-course between idealism and realism by attempting to syn- thesise moral relativism, a doctrine of moral interpretation, and the aim of an objective science of law (272-274). Kelsen's arguments for the synthesis trade upon ambiguities in his key concepts (275-276). Kelsen's arguments display a radical methodological syncretism: the arguments for Legal Positivism and those for the doctrine of interpretation have different methodological bases (276-277). V A SCHEMATIC COMPARISON BETWEEN THE PURE THEORY AND LAW AS A MORAL JUDGMENT CHAPTER SEVEN Constitution GENERAL INTRODUCTION Relationship between Chap. 5 and Chaps. 7, 8, & 9 (279). Appli- cation of theory governed by a conceptual master plan, and required response to a general problematic--how to specify a non -reaction- ary, non-anarchic, theoretically integrated response to moral contro- versiality in the Legal Enterprise (279-281). Moral reason must be treated as having both a theoretical and a practical aspect (282). Idea of practical authority is key to the bonding of the theoretical and practical aspects of moral reason (282-283). Relationship between practical authority and substance condition of definition of law (283-284). Distinctions between official incompetence and impeach- ability; between internal and external collateralities (284-285). Con- ceptual master plan yields a Theory of Accountability and a correlative Theory of Restraint (285). Agent moral rights/practical authority decisive for practical purposes; act moral rights/theoreti- cal authority decisive for definitional, ontological, and epistemo- logical purposes. Analogy between this problematic and Kelsen's and Hart's need for a middle-road (287). CONSTITUTION: INTRODUCTION Structure of the chapter (287-288). I CONSTITUTION AND AUTHORITY A legally valid constitution is a morally legitimate framework for governance (289). Legality at level of attempt and subjective agent moral rights: legality at level of achievement/outcome and act moral rights. A legally valid attempt may produce an illegal outcome, an illegal attempt a legally valid outcome (289-290). "Constitution" and "constitutionality," and contrast with legal positivist view (290-291). Relationship between constitution and authority (291-292). Distinctions between direct and indirect authority; between a position and an exercise of authority (292- 293). Practical authority may be exercised under subjective or objective agent moral rights, in the latter case achieving "provisional validity" (293). Scheme of authority related to scheme of ultra vires (293-294). Interpretation of challenge to constitutionality of a rule (294--295). II THE THEORY OF ACCOUNTABILITY Modern legal orders cannot function without delegation involving indirect personal authority (295). The binding nature of official decisions subject to the exercise of practical authority (296-298). The relationship between officials and citizens modelled on a rational contract stated by Gewirth's "method of consent" (298- 299). This contract limits official freedom (the Theory of Accountability) and non-official freedom (the Theory of Restraint) (299). Failure of officials to make good faith attempt to apply PGC is impeachable (300). "Rational defensibility" the test of official competence: Wednesbury principle; rational defensibility related to Dworkin's distinction between morality in anthropological and discriminatory senses (300-302). No free delegation to officials: implications for Bill of Rights and review of official decisions (302-304). III THE PGC POLITY: CONSTITUTIONAL NECESSITY AND CONSTITUTIONAL OPTIONALITY Two senses of "PGC polity" (304-305). PGC polity (in sense of PGC- approved framework for governance) takes form of democratic state committed to liberal-welfare values (305-306). Prima facie right to equal share of resources; modern capitalism incompatible with PGC (307). Design of PGC polity involves both necessary (Consti- tutional1) and optional (Constitutional2) features (308-309). Defence of Dworkin's analysis of Warren Court's desegregation decisions (309-313). But Dworkin's distinction between concepts and concep- tions not significant in itself for constitutional design (313-314). IV CONSTITUTIONAL PROCEDURES Procedural principles of Fuller's "inner morality of law" are moral principles (314-316). (a) Promulgation and clarity Secret and unclear rules inconsistent with legal order as community of friends (316-318). Theory of Accountability demands open, parti- cipatory, and accountable government (318-319). (b) Stability PGC favours relative stability of rules; but this does not imply non- reviewability (319-321). (c) Prospectivity Two considerations against retroactive penal rules (321-322). (d) Congruence Two reasons supporting demand for congruence between official action and declared rule (322-323) (e) Duty and aspiration, attempt and achievement Fuller's duty/aspiration distinction does not correspond to our achievement/attempt distinction (323-324). CHAPTER EIGHT Legal Obligation INTRODUCTION Structure of chapter (325-326). I LEGAL OBLIGATION AS MORAL OBLIGATION (1) Legal Validity Our view of legal validity contrasted with legal positivist view (326-328). (2) Legal Obligation as Moral Obligation: Our Natural-View Legal obligation is Moral obligation; legal obligation is moral obli- gation (329). (a) Where a rule is legally valid all agents have a legal- moral obli- gation to support and to show respect for that rule A moral, thus legal, order generates its own protective supportive obligations (329). Within a human legal order there may be transfor- mations in the values of the PGC (329-330). Four types of moral value: prima facie, synthetic, antecedent, and consequent (330-332). Case of John Doe, the aggrieved motorist (332-333). (b) Where a rule is legally invalid all agents have a duty to seek the removal of the rule and to oppose its enforcement; but this does not entail that there can never be a moral obligation to comply with a legally invalid rule Our general position; and more specifically with reference to col- lateral and provisional obligations (334-336). Three objections to this view (336-337). Similarities between Finnis' view and our own (337-338). (c) Although legally valid rules impose upon all agents a categorical general duty of respect the particular provisions of legal rules do not necessarily take the form of imposing categorical obligations or duties Duty-imposing and power-conferring rules (338-340). Form of rules distinguished from substantive meaning (340). Permission substan- tively related to duty (341). II LEGAL OBLIGATION AND MORAL RIGHTS Three axioms concerning rights (341-342). (1) The Denial of "Weak" Act Moral Rights Strong rights and weak rights. Hohfeldian analysis. Rejection of view that it is morally intelligible to conceive of permission without correlative duty (342-343). Rejection of argument that certain rela- tionships cannot be properly described without apparatus of weak rights (344). Distinction between relevant and non- relevant interfer- ence (344-345). Cases of the chess match, shrimp salad, neighbour's garden, and Dworkin's escaping prisoner of war (345- 348). Weak rights the result of weak analysis (348). (2) Denial of any Act Moral Right to do Moral Wrong No act moral right to do wrong, and a prima facie duty to interfere with the doing of moral wrong (349). Two riders to this view (349-350). Dworkin's discussion of rights of gamblers (350-352). III LEGAL OBLIGATION AND MORAL OBLIGATION (1) The Relationship Between Legal Obligation and Moral Obligation Four assumptions underlying our view that legal obligations are moral obligations (352-353). Taxonomy of L(1)egal and M (m)oral obligation (353). Legal obligations not necessarily moral obligations does not contradict legal obligations necessarily moral obligations (354-356). (2) Legal Positivism and Legal Obligation Legal positivist split between legal and moral obligation (356-357). Hart's account of obligation. This view is incoherent in treating a rule as imposing a legal obligation when in conflict with a moral obligation (357-359). Positivists can abandon idea of law as affair of binding obligation by returning to Austinian Imperativism (359). They cannot present law as affair of binding obligation within Morally neutral framework (360-361). Summary of legal positivist dilemma (361-362). A positivist rejoinder considered; that law is to be analysed in terms of its social function. Hart and Kelsen viewed as "normative positivists" (i.e. treating legal obligation as binding obligation) employing social function reasoning (362-364). Rejoinder rejected: Normative Positivism equivocates on Legal vs legal; it is reactionary; it eschews a notion of Legal legitimacy; and it makes indirect ascription of Moral legitimacy prim~ -ry in con- struction of the object of legal cognition. Problem not with social function analysis as such but with morally neutral portrayal of this activity (364-366). Legal positivist law game (LPLG) engages in "pecosprudence" not jurisprudence, and threatens both conflation of two types of "law objects" and reaction (366-368). No middle way between realism and idealism (Kelsen), or imperativism and Natural-Law Theory (Hart). Normative Positivism internally contra- dictory (368). IV THE THEORY OF RESTRAINT Moral idealism and need for restraint in moral community (368-370). Theory of Restraint places citizens under specific duties to comply with rules issued under practical authority (370--371). Citizen's position where rationally indefensible rule not declared unfit on review (371-372). Citizen's position if unable to displace pro- visionally legal rule by ordinary political means (372). Citizen's pos- ition where official action is practically ultra vires (372-373). Collateral considerations (internal and external), and standing and non-stand- ing obligations (373). Beyond Theory of Restraint, non -compliance justified only where it has best consequences as measured by PGC: this not to be equated with utilitarian or aggregative thinking (374-375). Theory of Restraint not reactionary (375- 376). Theory of Restraint, good faith, and duty of trust (376-378, 379n). APPENDIX Notes accompanying tables (378-379). Table A: Legal authority and legal obligation: conceptual relationships (380); Table B: Legal authority and legal obligation: practical implications (381). CHAPTER NINE Adjudication INTRODUCTION Chapter concerns essence of adjudication (382). Standard Anglo- American writing on judicial process presupposes legal positivist framework; but Dworkin's Rights Thesis invites reconsideration of concept of adjudication (383-384). Scheme of chapter (384). I THE CONCEPT OF ADJUDICATION (1) The Judge-Centred Concept of Adjudication Distinction between broad and narrow (Judge-centred) senses of adjudication (385). Role-position of Judge characterised by role- morality (385-386). Distinction between occupying position of a Judge, and acting as a Judge; role-morality conditions for acting as a Judge (386). Legality of Judge's attempt and legality of achievement (386-387). Summary of relationships between judicial role-position, role-morality, authority, and obligation (387-388). A judgment is a ruling handed down by one who acts as a Judge (388). Role-morality of Litigants and Legal Advocates (389). A Court is a PGC-approved institutional design (389). Explanation of pitching role-morality at level of subjective agent moral rights (389-390). (2) Adjudication and the Participants Essence of adjudication is that participants attempt to produce legit- imate determination of issue in good faith: some deficient attempts (390-391). (3) A Court A legal Court is the right institutional design (as dictated by PGC) (391-392). Court design possibilities and Rawls' discussion of pro- cedural justice (392). Court design may encompass necessary/ generic and optional features (393-394). Phases of adjudication relative to Court design (394-397). Community Courts (397-398). Guilty-pleading and plea-bargaining: ideally Court design must facilitate scrutiny of guilty-pleas, and disallow tripartite plea- bargains (398-400). (4) A Judge English orthodoxy, that role of Judge is to decide questions of law not morality, fundamentally misconceived (400-403). (5) A Judgment To act as a Judge, certain procedural conditions must be observed; procedural conditions constitute a set of judgment ideals (403-404). Murphy and Rawlings' criticism of judgments in House of Lords; Lord Diplock's reasoning in Dockers' Labour Club case (404-406). (6) A Legal Advocate Our concept of a Legal Advocate compared with governing English view (406-409). II RONALD DWORKIN'S THEORY OF ADJUDICATION Contention in this section is that Dworkin's theory of adjudicatiolL best read as a relativistic natural-law thesis (409- 410). (1) The Rights Thesis Essential elements of Dworkin's Rights Thesis (410-413). (2) The Rights Thesis and Legal Positivism Summary of Dworkin's attack on Hartian Legal Positivism and rule of recognition (413-414). Dworkin's argument implies a shortcom- ing in rule of recognition with respect to either the identification or the application of legal materials (415). Legal positivists can deal with the problem of application, but cannot deal with the problem of identification where judicial appeals to political morality are treated as appeals to law (415-418). Dworkin's narrow assault on rule of recognition threatens foundations of Legal Positivism (418-419). Critical question is Dworkin's concept of law (419). A ten- sion between a legal positivist and a moral approach is evident in his account of legal duty, and in the Rights Thesis' treatment of institutional fit, morality, and mistakes (419-421). Tension can be resolved if "plainly valid rules" are treated, not as axiomata for best justifying theory, but as desiderata for its application (421-422). Such a resolution implies that Rights Thesis is a natural- law doctrine (422). Recapitulation (422-423). (3) The Epistemological Presuppositions of the Rights Thesis Viewed as a Natural-Law Thesis Four epistemological theses of Rights Thesis as a natural-law thesis: "critical cultural morality" decisive for legal validity; observation theory-dependent; legal facts value-dependent; concept of a right more basic than concept of a collective goal (423427). (4) Criticism of the Rights Thesis: The Standard Reaction Standard criticism (Judges do decide on policy) and some standard face-saving (for Dworkin) interpretations of Rights Thesis (427-429). Three assumptions fuelling standard rejection (429-430). Assumption that nature of adjudication to be determined by Judges' own accounts of practice to be rejected: distinction between "what is seen happening" and "what is seen to be happening"; cases of bus-stop witness and balletic footballer; distinction between objective and subjective description. Objective description depends on concept of adjudication (430--432). Assumption that per- sons occupying position of a Judge necessarily act as Judges begs question against Rights Thesis (432-434). Assumption that descrip- tive and prescriptive aspects of Rights Thesis are independent is misconceived (434-435). Rights Thesis immune to standard criti- cisms, but if read via conceptual pragmatism it cannot claim to be true (435). t5) The Rights Thesis and Our Theory of Adjudication If Rights Thesis read as natural-law thesis then Hercules less con- strained by institutional fit than Dworkin avers (435 -436). Agree- ment with Dworkin that Judges have only weak discretion (436). Differences between two views on legislative powers of Judges, and on EMR (437). Structure of Rights Thesis compared with our own view where PGC hypothetically supposed to represent critical cul- tural morality (437-440). CHAPTER TEN Concluding Remarks Topics requiring discussion or further elaboration if our theory to be presented as a complete conceptual theory of law (441-442). Main themes and arguments of the book (442-443). I PHILOSOPHY OF LAW AND OTHER LEGAL DISCIPLINES Cognitive activities of legal theory. Assumptions made in this book about their relationships (443--445). II NATURAL-LAW THEORY AND IDEALISM Senses in which we accept or reject the designation of our theory as "idealism" (445--447). III THE FACT/VALUE DISTINCTION IN SOCIAL SCIENCE Our transcendental argument for a Natural-Law Theory amounts to a radical rejection of the doctrine of the value- freedom of social science: this rejection is not restricted to legal science (447--448). IV NATURAL-LAW THEORY AND HUMAN NATURE Gewirth's claim that his derivation of the PGC is not a derivation from a view of human nature. This claim is misleading if meant to imply that the derivation does not presuppose a view of human nature (448-450). Some propositions of this view which we would be prepared to argue for (450-452). V LAW AND IDEOLOGY Implication of our theory with the notion of "false consciousness" (452-453). The social function of legal rhetoric as a rhetoric of legiti- mation (453-454). VI THE CONCEPT OF LAW AND SOCIOLOGICAL THEORIES Adherence to our concept of law is a criterion of adequacy for socio- logical theories of law. Our concept of law also has a controlling function in the interpretation of sociological theories of law (454-456). BIBLIOGRAPHY INDEX |