[2.] Theories of Law.

 

This section of the course introduces two competing theories about the nature of law itself: legal positivism and natural law theory. [1]

 

Each of the theories consists of two theses:

 

1.       the first thesis of each theory addresses the question of legality: every society recognizes certain norms or standards (moral, aesthetic, etc.), but what determines whether a rule or principle is a legal norm in a given society?

 

2.       the second thesis of each theory addresses the question of authority: .. assuming that a principle is a law in a given society, the fact that that rule is a law gives people a special reason for obeying it, a reason that they would not have if that rule were not a law. How do we account for this?

 

Legal Positivism

 

(LP1) The Social Thesis: whether a rule or principle counts as law in a given society is a matter of nothing but social convention; more specifically, the law for a given society is just whatever has been enacted by the lawmaking agency of that society.

 

(LP2) The Separability Thesis: law is completely separate from morality; more specifically, the question whether a principle is a law is separate from the question of that principle/law’s morality.

 

Legal positivists: Jeremy Bentham, John Austin, H.L.A. Hart, Hans Kelsen, Joseph Raz.

 

·         An early legal positivist was John Austin, who wrote that “the existence of law is one thing; its merit or demerit is another.” (John Austin)[2]

·         Austin thought that we should distinguish the laws that actually exist in a given society (which he called positive law) from the laws that would exist if the lawmakers were enlightened, and from the rules of morality that hold in a given society (which he called positive morality).

·         LP does not imply that laws cannot be morally evaluated. Both Austin and fellow positivist Jeremy Bentham were utilitarians and thought that morally good laws were those that tended to increase overall happiness [Bentham also famously argued that the common law system of England was like “dog-law,” like waiting for your dog to do something wrong and then hitting it, and that it should be replaced with a codified, civil law system.]

 

 

Natural Law Theory

 

(NL1) The human activity of lawmaking must meet certain moral standards in order for it to have law as its outcome [denies LP1, the Social Thesis]

 

(NL2) The question whether a principle is a law cannot be separated from the question of that principle/law’s morality. [denies LP2, the Separability Thesis]

 

Natural lawyers: St. Thomas Aquinas, Lon L. Fuller (author of today’s reading)

 

In the first reading, we will also be introduced to two theories regarding the nature of legal reasoning, theories which we will consider at greater length later:

 

Legal Formalism

 

·         Law is “a rational, logical system. A formalist judge makes decisions deductively—that is, by drawing conclusions from premises according to formal rules of reasoning.” (p.24)

·         In deciding cases, judges are “reinforcing and uncovering fundamental legal rules and principles” (p.102)

 

Legal formalists: Christopher Columbus Langdell

 

Legal Realism

 

·         Law is “an all-too-human activity. Realists find judges making pragmatic, and often illogical, decisions.” (p.24)

·         “[J]udges do not merely consult legal rules, but actually find legal rules that suit their interests.”(p.102)

·         On this view judges cannot “avoid taking account of public opinion and acknowledging the realities of the administration of criminal law.” (p.57)

 

Legal realists: Oliver Wendall Holmes, Benjamin Cardozo

 

 

[2.1.] The Case of the Speluncean Explorers.

 

This fictional case by legal scholar Lon L. Fuller (1902-1978) has been called the greatest fictional law case of all time.

 

Fuller wrote this in order to illustrate a number of different theories about the nature of law and legal reasoning. The various opinions are written by fictional judges who represent different theories, and thus each opinion illustrates one or more of those theories.

 

 

[2.1.1] Historical Precedents.

 

Fuller almost certainly based his fictional case on two well-known actual cases.[3]

 

U.S. vs. Holmes (1842) [discussion issue #4, pp.57-8]

·         An immigrant ship, sailing from Liverpool to Philadelphia, hit an iceberg off the coast of Newfoundland and sank.

·         42 people, including the mate and several sailors, found themselves on one of the life boats; after a day or so it began to spring leaks and was sinking.

·         The mate ordered the sailors on board the life boat to lighten the load. A sailor named Holmes began throwing people overboard: more than six (including four men and two women); the next day he threw two more men overboard

·         Finally they were rescued, and back home in Philadelphia Holmes was charged with voluntary manslaughter.

·         He was found guilty and sentenced to six months in prison and a fine of $20; he served the time but did not have to pay the fine, because he was eventually pardoned by President John Tyler.

 

 

Regina vs. Dudley & Stephens (1884) [discussion issue #3, p.57]

·         A yacht sailing from Essex, England to Sydney, Australia sank, leaving four crew members in a 13-foot lifeboat: the captain (Dudley) and the mate (Stephens), and two seamen, Brooks and Parker. Parker was 17 years old and already weak.

·         After several days without food and water, Dudley suggested to Stephens that they conduct a lottery to choose one person to be killed and eaten by the others. Stephens refused.

·         Later Dudley convinced Stephens that they should kill Parker, who was already ill and without family, and eat him.

·         They did so and consumed about half of Parker over the next few days, at which point they were rescued by a German boat.

·         The boat put in at Falmouth, England on the way back to Germany. There the men were charged with murder.

·         The public was on the side of the defendants, so the judge asked the jury for a special verdict: not a finding of guilt or innocence, but simply a finding on the facts.

·         Based on the facts found by the jury (“yep, they ate Parker”), the judge found the men guilty and sentenced them to hang.

·         They were pardoned by Queen Victoria.

 

 

[2.1.2.] The Speluncean Explorers.

 

[I am omitting many of the facts of the case from these notes; for these details, see the first portion of Truepenny’s opinion, pp.49-51.]

 

On day 20, the spelunkers were told that they would not be rescued for at least another 10 days

 

A medical expert told them that there was little possibility that they would survive on the meager rations they had left. They asked whether they would be able to live by killing one of themselves whom the others would then eat, and the medical professional answered that they would be able to.

 

Whetmore (the soon-to-be-consumed) asked for a judge or government official, or for a priest or minister, to answer the question whether it would be advisable for them to hold a lottery to see who would be eaten. There was no such person at the camp, and no one who was there was willing to advise them on this.

 

When they were released, it was learned that on day 23 Whetmore had been killed and eaten.

 

Throwing the dice was Whetmore’s idea, but once the group was convinced to do it, he changed his mind and decided to wait at least another week. The others objected and threw the dice for him. He agreed it was a fair throw; as it happens, the dice went against him; he was killed and eaten.

 

Upon release, the four survivors were indicted on murder charges.

 

The jury requested, and were granted, permission to reach a special verdict, ruling only on the facts of the case and not on the defendants’ guilt or innocence. They found the facts to be as related in Justice Truepenny’s opinion; and they found that, if on those facts, the defendants were guilty of breaking the relevant law, then they were guilty.

 

The trial judge ruled that they were indeed guilty. The law permitted the judge no discretion in sentencing, and he was forced to sentence them to death.

 

Both the trial judge and the jury asked the chief executive of Newgarth to commute the sentence to six months imprisonment. At the time of the opinions we are reading, the chief executive has not yet decided—evidently, he’s waiting for the justices to issue their opinions in regard to the defendants’ appeal.

 

Five justices issued opinions on this case; four of these are excerpted in your textbook.

 

 

Stopping point for Friday February 2^nd. For next time, read pp.52-56 (the remainder of the Speluncean Explorers article).