Great Ideas of Philosophy

Lecture Fifty-SevenOn the Nature of LawScope: Philosophy of law begins with critical appraisals of the sources of law’s authority. It is an ancient subject,already developed in Aristotle’s political and constitutional writing and systematically considered byCicero and others major figures in ancient Rome. For two millennia, the results of these inquiries favoredwhat came to be called natural law theory, rooting the law’s origins and authority in the laws of natureitself and in the rational nature of human beings. With the Enlightenment’s broad critical attack on all sortsof conventional understandings and traditional institutions, law, too, came under scrutiny. Late in the 18 thcentury, a number of major reformers, especially Jeremy Bentham, began to consider not the formalfeatures of law but its functions, its utility. Bentham’s student John Austin developed the perspective to thepoint of establishing analytical jurisprudence as an alternative to earlier approaches. The result was atheory of law that distinguished it from moral philosophy and moral aims. The resulting legal positivismoffers law as a social product, devised to solve actual problems in ways that enjoy wide agreement in aparticular community. An even less philosophical version of these developments is that legal realism thatwould reduce law to whatever it is that predicts the behavior of courts. Central to this notion is law assomething made by judges. All this duly noted, the essential claims of natural law theory either arerequired for these other formulations to make sense or provide something essential that is missing fromalternatives.OutlineI. Philosophy of law, or jurisprudence, has long been of interest to philosophers.A. In his treatise on Politics, Aristotle defined law as “reason without passion.”B. Cicero speaks of law as akin to “the mind of God” and distinguishes the natural law from both the law ofnations and the civic law.C. To keep an already complex historical record and conceptual terrain manageable, I would stipulate thatphilosophy of law begins when we can identify a position taken on the origins and sources of law and itsresulting authority.1. On this understanding, the oldest tradition in philosophy of law is theological.2. Times or settings in which this minimal theoretical framework is missing are best understood as prelegal.3. We see that the defining mark of philosophy is a mode of criticism designed to test the validity or truthof propositions.D. The standard legal “textbook” of the early medieval period—the Institutes of the emperor Justinian (A.D.533)—divides law into the classification that Cicero had developed: natural, common, and civic. Hepreserves the sense of law as an expression of natural reason, tied to the happiness and security of thecommunity.E. Seven centuries later, Thomas Aquinas will put his seal on natural law theory, declaring law to be “anordinance of reason, promulgated by one who is responsible for the good of the community.”II. The Enlightenment, however, drew attention to the confusion between what many deemed the natural state ofaffairs and states of affairs that had simply gone on too long, with formidable powers seeking to preserve thestatus quo.A. One leader of the Reform movement was Jeremy Bentham, a profound influence on John Stuart Mill’searly education.1. Bentham’s student John Austin, during his time in the Chair of Jurisprudence, prepared a volume thatwould profoundly affect how law itself is understood—The Province of Jurisprudence Determined.2. It would be too much to say that Austin or any single book established the field of analyticaljurisprudence.3. Nonetheless, one searches without success for works before Austin’s that so clearly distinguish moraland legal concepts and reserve independent status to each.26©2004 The Teaching Company Limited Partnership