Legal Philosophy

Our session on legal philosophy, presented by Brian Butler, Ph.D & J.D., was very enlightening, especially regarding philosophical comments about law and justice. Apparently 'the sense of justice' will continue to reside only in human hearts and minds.

The attempt to define exactly what 'law' is has been called Analytical Jurisprudence!

Analytic Jurisprudence includes three general philosophical positions regarding what law is (the meaning of law). They are 1) Natural Law 2) Legal Positivism and 3) Legal Realism.

Natural Law is conceived to be outside of human control. Natural laws are discovered by examining the world. Laws seem written into the universe which control natural physical phenomena. Shouldn’t living beings be subject to natural laws as well? But, applying concepts of natural law often leads to what is very unjust in our eyes. Might is right, the power of brute force, of arms, etc. can be argued to be expressions of natural law but do not provide an adequate basis for understanding what law is.

Legal Positivism stands in contrast to Natural Law theory. It holds that laws are commands! It includes any doctrine in which law is defined as the expression of human will or as man-made. No reference to justice or other moral values enters into the definition of law. Legal Positivism requires that commands, in order to become law, must pass through some 'set of rules of recognition.' To be law, commands must carry a sense of legitimacy and convey a sense of moral duty to obey them. There are two kinds of 'rules of recognition' that have been called Primary Rules and Secondary Rules. Primary rules are those which directly effect our behavior. Secondary rules are those which tell a society how to make the laws; in the USA, it is The Constitution which provides the basis for generating laws.

Legal Realism holds that 'law is a prediction of what courts will decide.' Court decisions produce law. The realists saw legal certainty as essentially unattainable and even undesirable in a dynamic society. Their main concern was not logical consistency but socially desirable consequences. Realists believe jurisprudence should focus on social facts more than on legal concepts. Legal decisions are not compelled by law and choices are necessary at every step. Court decisions set precedence that is then sought and followed. This approach is open to criticism because under this philosophy, courts could never be wrong. Past decisions always involve individual cases and their unique circumstances which may or may not pertain to any other given case.

The second part of the presentation addressed the question: What do judges do?

Legal Positivism says that when a judge is confronted with a difficult case with legal and moral conflict, the judge can follow the letter of the law. Perhaps they can be viewed as applying the law. The Legal Realists look to the world. They use sense, check data, and decide, after all the facts are in, which would socially be the best course of action. Oliver Holmes believed that the source of law is the act of judicial interpretation. All law is judge-made! Natural law theorists like Ron Dworkin say that there are ‘other principles’ which come into play other than laws being made through 'rules of recognition.' We need ‘other principles’ to use in interpreting law. These principles are important and the absence of them causes serious problems. Principles are 'out there' and judges who call principles into play do not make law, instead, they 'find law'.

Melissa Burchard, Ph.D., presented three brief responses to traditional legal philosophy.

The Critical Legal Studies have emphasized the nature and use of language and how language functions in law as a base for power. They see law as a discourse on power and language as a tool to create, generate and maintain this power. Certain language provides a system of possibilities for apprehending and understanding the world. Language constructs help us make sense of the world by presenting ideas, norms, customs and categories by means of which we deal with the world. Dominant language and existing ideas condition the way we think and blocks alternative ways of viewing the world. Not all discourses on power are legitimate, not all laws are fair or just. They simply maintain the power structure.

Feminist Jurisprudence. There are gender assumptions of human nature built into law unconsciously and we are unaware of them. The present law acts to constrain human actions based on the ideas of masculine natures and ideas of masculine relations. Others are ignored. Studies have suggested that 'autonomy' is of major importance and value to men. Men will act to annihilate those things that frustrate their desires or obstruct their goals. For females, on the other hand, intimacy has been suggested as their predominant value. Separation is the most harmful experience for females. These are two very different perspectives of life. Thus law, which tries to encompass all under one story, cannot really pertain to any individual or groups of individuals. Date rape is another example where acts are very differently interpreted by males and females, under the very same conditions.

Critical Race Theory. One’s sense of empowerment may determine one’s relationship with the law. For example, a single black woman might sense a weaker claim to rights and have a less secure sense of self-ownership than whites do. Her rights may be more easily overlooked or overridden. Each group has its own perspective of law and how it justly or unjustly pertains to them.

Our next meeting will be held on March 7, 2001, at the Kellogg Center, 11 Broyles Rd. just west of Hendersonville, off route 64. The subject will be: “How do we experience beauty? What is Aesthetics?” It will be presented by Ms. Sarah Worth from Furman University. The discussion will be monitored by Dr. Don Emon. Refreshments will be served. Please come and bring a friend or interested acquaintance.