Legal Philosophy Unit 2

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Unit 2 Assignment:

Five Philosophers’ Views

LS490 – 01

July 17, 2012

Five Philosophers’ Views
Legal philosophy is the investigation into the complexities of the legal system. The three common truths that are basically accepted among legal philosophers are “law is a social phenomenon, law is authoritative, and law is for the common good” (Murphy, 2007). Five of these legal philosophers’ views of the law and how it functions according to those commonplaces will be discussed. John Austin, H.L.A. Hart, Ronald Dworkin, Lon Fuller, and Thomas Aquinas’ views of legal philosophy will be described in various ways to conclude if their views are logical or illogical, consistent or inconsistent, and finally, persuasive or unpersuasive.

John Austin’s view of the law was from the angle of legal positivism. Legal positivism is in contrast with a natural law theory or law derived from morality. Legal positivists view the law as “positive norms, that is, norms made by the legislator” and “does not base law on divine commandments, reason, or human rights” (Himma, 2005). Austin based his views around the commonplace that law is a matter of social fact and rejected law being for the common good as a commonplace but rather a “moral thesis about how law ought to be” (Murphy, 2007). According to Austin, the core nature of law is that “laws are commands of a sovereign” (Stanford Encyclopedia of Philosophy, 2010). The sovereign is defined by Austin as a person who is obeyed consistently by the majority of the people while that person does not habitually conform to any other and the law consists of commands laid down by that sovereign.

Austin’s views are logical from the standpoint of what a law is. Analytically speaking, Austin stands on the side that when a law is made about how one must behave, it must be obeyed. Austin’s views analyze the law literally and he purposefully leaves questions about morality out. This does not leave much room for the populace to question the law on moral or ethical grounds. Austin does not argue whether law should or should not be moral. Rather, he looks at law as a command that must be followed with morality being irrelevant. He saw the law from only a logical point of view.

Austin’s consistencies with his views are inconsistent and at times contradictory. Austin speaks of law as a mirage of threats that are implored by one sole person whom does not have the same obligation to follow the rules or face sanctions. He may place the authority of the laws with the sovereign but does not get at the law being authoritative, only commanding. Austin notes there are laws that are immoral but the commonplace of law being for the common good is simply a “moral theses about how legislators out to fashion the law” (Murphy, 2007).

The inconsistencies in Austin’s views provide his theories to be unpersuasive. In the idea that there is a sovereign who is above the law is unconstitutional within United States today. The Constitution is the supreme law and any law that is made which contradicts it, essentially, is not a law. Austin also fails to comment on any other types of laws within our society aside from those that are criminal in nature. A law is a command that dictates a person’s behavior, according to Austin. In reality, there are many other laws and rules that guide other legal arenas aside from criminal and Austin seems to omit these all together.

H.L.A. Hart also has a positivist’s view of the law, but unlike Austin, Hart sees legal rules as obligatory and not coercive. Hart views the law “not in terms of commands but in terms of rules” (Murphy, 2007). Hart points out that a primitive legal system is one that consists entirely of rules that restricts liberty and describes societies with a developed legal system as those who incorporate both primary and secondary rules for law. Primary rules of law are rules concerning the behavior of individuals. In contrast, the...
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