Some Natural Confusions About Natural Law

To describe this renewed interest in natural law as a resurgence does imply, no doubt, that the ideas associated with the concept are too vital to be put permanently to rest; but resurgence also implies that natural law, for whatever reason, has been assigned the role of challenger to the reigning orthodoxy, rather than that of defending champ. By and large, this inference about the role assigned to natural law by the general public is, I think, correct. Natural law seems to evoke a degree of skepticism in our society that forces any theory that goes by the name to confront a higher burden of proof than is placed on other, more familiar theories. In this article, I explore some of the reasons for this skepticism - reasons that seem to me to represent confusions about what the concept entails, rather than legitimate objections to the substantive doctrines of natural law. I call the confusions I have in mind natural for two reasons. First, I suggest that there are good historical or logical explanations for the confusions - indeed, in several cases, the natural law proponent has invited or perpetuated the confusion and thus helped to jeopardize the public reception of his own ideas. Second, I hope that revealing the natural origin of these common misunderstandings will help us to lay them aside and thus give natural law a better chance to make its case on its own terms

On the Relation between Form and Substance in Law

In this paper the author deals with some theoretical aspects of Robert Summers' last book ( Summers 2006 ). In particular, he concentrates on the hazy relationship between form and substance in Summers' theory. In order to analyze some major difficulties entailed in the thesis that form and substance are different and independent things, the author discusses three specific questions: (1) the difference between form and substance; (2) the possibility of a form meant to be value-neutral; (3) how to distinguish a form-centered approach from a formalistic approach when one has to interpret a statute. This last question is dealt with through examples taken from two legal decisions. *Peer Reviewedhttp://deepblue.lib.umich.edu/bitstream/2027.42/73833/1/j.1467-9337.2007.00347.x.pd

Searching for Positivism

A Review of W.J. Waluchow, Inclusive Legal Positivis

Metaphors and Models of Law: The Judge as Priest

The reasons that prompt people to try to identify laws or legal systems in advance of encounter are varied. One is that laws, though less concrete than chairs, are equally capable of posing obstacles to conduct: they can be stumbled over. If the desire to avoid such contact were the sole reason for trying to decide what law is,\u27\u27 Holmes\u27 aphorism would work fairly well: by predicting judicial decisions and calculating the likelihood of avoiding accompanying sanctions, one could play a good game of bad man\u27s bluff around legal obstacles to chosen courses of action. The claim that law is identified by more than this predictive aspect arises when one takes into account the perspective of individuals other than Holmesian bad men -the judge, for example, who looks to the law as a guide for, rather than a prediction of, his decision; or the individual who believes that valid norms yield obligations whether or not they are accompanied by sanctions

The Constitutional Framework of Environmental Law

For federal and state legislators .seeking legal solutions to environmental problems, constitutional law is a part of environmental law only in the indirect sense of providing the basic legal framework with which substantive environmental standards-like all legislative standards-must ultimately comport. When Congress, for example, enacts legislation to control pollution or to protect endangered species, the constitutional issue theoretically presented is whether such legislation exceeds limits placed by the Framers on federal legislative authority. These limits may result either from the lack of federal power to deal with the problem or from conflict between a federal regulatory scheme and the constitutional rights of affected individuals. A state legislature, in contrast, is free to wield the state\u27s police power unrestricted by the limitations that theoretically face a government of limited powers; but the state in turn must observe not only the constitutional rights of affected individuals, but also the boundaries inherent in a constitutional scheme that gives supremacy to federal laws and programs over conflicting state efforts. In both of these cases, constitutional law sets potential bounds on the range of permissible legislative responses to environmental problems

What is Law? (Who Cares?)

To say precisely when legal theory reached its current dead end would be more difficult and less to the point than describing the nature of the impasse and its causes. By legal theory I mean that body of speculative thought about the nature of law that has dominated analytical jurisprudence since John Austin\u27s lectures on the subject a century-and-a-half ago. By dead I mean what the term suggests in ordinary speech: lifeless, drained of connections to any of the purposes that give meaning to human life. Dead end I suggest, rather than dead simpliciter because, unlike others who mock the sterility of these disputes, I do not believe that the basic enterprise is misconceived so much as misdirected. Legal theory has taken a turn that can only end in an increasing divergence between the phenomena it analyzes and the actual experience of ordinary citizens

Legal Theory and the Obligation of a Judge: The Hart/Dworkin Dispute

Confronted with standards beyond those obvious in purpose and rule, the positivist, says Dworkin, has two choices. He must either claim that such standards are only discretionary and hence not legally binding, or he may concede their binding status and argue that he identifies them as legal standards through reference, in some more complex way, to his theoretical master test. There is, however, a third possibility. The positivist might admit that some standards bind judges but explain that they play a role in the legal system sufficiently different from that of ordinary rules and principles to justify excluding them from the class of standards encompassed by the concept of law. This position makes irrelevant the question whether such standards could be captured in advance by a master test: Even if capture-proof, they would constitute no defect in a theoretical model designed to capture only legal standards. Dworkin insists that arguments of this sort can only beg the question in the present context because they assume the very distinction between legal and other kinds of standards that the positivist\u27s rule of recognition is designed to establish. The aim of the present section is twofold: first, to develop the suggested distinction between two kinds of standards that bind judges, and, second, to consider whether all standards that bind judges must necessarily be deemed legal standards. In one sense, Dworkin is correct that the controversy at this point threatens to become merely verbal. But there is another, more important sense in which the difference between these kinds of standards appears sufficiently basic to justify (as more illuminating) a model of law that preserves, rather than dissolves, the distinction

The Moral Value of Law

Suppose you have correctly concluded that it is your legal obligation to act or refrain from acting in a certain way. Can you, from that conclusion alone, say anything at all about what you ought to do morally? An affirmative answer to this question implies that law has moral value regardless of content or circumstance: without knowing what the act is that the law commands or even what legal system has enacted the law, one would, on this view, be able to link the conclusion about legal obligation with some conclusion about moral responsibility. Such a view seems quite far-reaching precisely because it asserts a connection between law and morality that is universal in scope. In another respect, however, the claim could be quite weak: the alleged link between law and morality, though universal in scope, might be weak in effect, in the sense of being easily broken or overcome by countervailing considerations based on the content of particular laws or the nature of a particular legal system. Whether one thinks an affirmative answer to the question is plausible may well depend on whether the breadth of the claim in terms of scope is offset by modesty in terms of claimed effect

Legal Theory and the Problem of Definition

Natural Law and Natural Rights is a refreshingly direct book about some decidedly difficult matters. It is also a book that refuses to do homage to the complexity of its subject by limiting the topics covered. Here is virtually a mini-treatise in moral philosophy, with illuminating discussions on the whole range of human value and on a good part of the related range of metaethics, legal theory, political theory, and the problems of methodology in the descriptive social sciences