Imanuel Kant is known as the philosopher of the three criticisms: Critique of pure reason, Critique of practical reason and Critique of judgment. Some words, in Kant, do not have the usual meaning. For example: criticism, instead of meaning censorship or disapproval, means study, investigation and research; pure does not have the sense of being free of impurities, but rather independent of experience; therefore, Critique of pure reason does not have the usual meaning of words, but it does indicate an investigation of reason functioning independently of experience.
For Law, philosophy presents itself as an important instrument in apprehending the meaning of legal norms, such importance is built from philosophical concepts that allow jurists to understand their own activity. It works as a process, through which, without denying or contesting the validity of the previous posture, it highlights another angle.
It appears as learning to think, that is, as a development of the ability to question, to reject immediate evidence as unequivocal data, as the most important thing is not to know the answers previously presented, but to try to achieve, through the reflection and questioning already proposed. British philosopher Collingwood argues that the role of philosophy is not to make people think, but to make them think better; because it strengthens the thinking skills he already has; challenges you to think about significant concepts from the philosophical tradition, urging you to make use of thinking skills that need to be learned to think critically other areas of knowledge, including law.
Thus, it is on the basis of the truths accepted and postulated by science that Philosophy is constituted, questioning the very principles of legal science and effectively contributing to its renewal, escaping, through a permanent criticism of stagnating in sterile dogmatism and alienated. Having explained the specificity of philosophy, it remains to understand its importance for the study and practice of law.
Insofar as Law is a reality produced by human reason, insofar as it is a cultural being, it is also an object specially thought by Philosophy, which leads to the perception that a Philosophy of Law can and should exist. It can be said that one of the relations of Philosophy with the Law will involve the attempt to evaluate, weigh the performance of Law before society in order to contribute so that it, Law, seeks the possible and necessary improvements to reach its primary goal: to organize, in a reasonable way, the society, managing equally the divergences of interests of the individuals that compose the society.
The law is fundamental to the coexistence of man in society. Thus, the law presents itself as something complex and that needs to be explained. Thus, Philosophy proposes to study Law as something that exists objectively and applicable to all. Thus Reale , p. It cannot even be said that it is special Philosophy, because it is Philosophy, in its entirety, insofar as it is concerned with something that has universal value, the historical and social experience of law.
The expression philosophy of law only appeared in the beginning of the 19th century, even though the theme has its roots in the origins of the Western legal and political culture. Philosophy of law is a branch of General Philosophy that presents a panoramic view of the legal phenomenon in the social context, aiming to analyze, not only the aims pursued by the complex legal order, but to understand them.
It is the branch of Legal Science that is concerned with the ethical application of the standard. Legal Philosophy is the constant question that juridical philosophers make about the various phenomena of the legal field. LAFER, , p. The philosophy of law should serve to identify the different cultural or philosophical parameters that justify law and law. It is through the philosophy of law that we will analyze the different conceptions about the relationships between law and morality, between society and the individual.
The philosophy of law does not analyze the formal qualities of law, which is the domain of the legal sciences, but simply follows the meaning and horizon of the modern legal project. For Galves , p. Fundamental, because it is, literally, the foundation, the basic questions, on whose solutions the whole building of Law stands.
More than that, it is your task to seek the fundamentals of Law, either to become aware of its nature, or to criticize the seat on which the structures of legal reasoning are founded, sometimes causing cracks in the building that overlook the buildings.
Another concept is presented by Reale , p. For this author, Philosophy of Law is not a specific discipline, but what is called Philosophy of Law is the complete exercise of Philosophy geared towards the Law object.
It follows from this concept that the Philosophical activity, when turned to Law, takes with it all the tradition and strength that comes from General Philosophy. Reale , p. In some way, for this author there is no way to speak of absolute independence from Philosophy of Law, what can be said is Philosophy focused on Law, that is, Philosophy of Law, even seen with a certain autonomy, has links with Philosophy General.
With these explanations, we seek to demonstrate to the new entrants in the legal field the importance of the philosophy of law for its operators, enabling them to obtain critical knowledge, which awakens in students the true sense of knowledge.
It is more than opportune to study the law taking as a guideline the principles of philosophical knowledge. It is necessary that bachelors in the legal field understand the true meaning of philosophy in the construction of knowledge and in the training of professionals, as it is an indispensable assumption for their training, as it allows students and professionals to critically read the law.
Therefore a norm is legally valid i. This challenge, and the controversies it gave rise to, form one of the main topics discussed in contemporary general jurisprudence. Explaining the rationale of legal authority, however, is not the only component of a theory about the normativity of law. If we hold the legal positivist thesis that law is essentially founded on social conventions, another important question arises here: how can a conventional practice give rise to reasons for action and, in particular, to obligations?
Some legal philosophers claimed that conventional rules cannot, by themselves, give rise to obligations. The debate here is partly about the conventional nature of the rules of recognition, and partly about the ways in which conventions can figure in our reasons for action.
According to one influential theory, inspired by David Lewis conventional rules emerge as solutions to large-scale and recurrent coordination problems. If the rules of recognition are, indeed, of such a coordination kind, it is relatively easy to explain how they may give rise to obligations.
Coordination conventions would be obligatory if the norm subjects have an obligation to solve the coordination problem which initially gave rise to the emergence of the relevant convention. It is doubtful, however, that the conventions at the foundations of law are of a coordinative kind. In certain respects the law may be more like a structured game, or an artistic genre, which are actually constituted by social conventions.
Such constitutive conventions are not explicable as solutions to some pre-existing recurrent coordination problem. The conventional rules constituting the game of chess, for example, are not there to solve a coordination problem between potential players.
Antecedent to the game of chess, there was no particular coordination problem to solve. The conventional rules of chess constitute the game itself as a kind of social activity people would find worthwhile engaging in.
The constitutive conventions partly constitute the values inherent in the emergent social practice. Such values, however, are only there for those who care to see them. Constitutive conventions, by themselves, cannot ground an obligation to engage in the practice they constitute.
From a moral point of view, the rules of recognition, by themselves, cannot be regarded as sources of obligation to follow the law. Whether judges, or anybody else, should or should not respect the rules of recognition of a legal system, is ultimately a moral issue, that can only be resolved by moral arguments concerning the age old issue of political obligation. And this is more generally so: the existence of a social practice, in itself, does not provide anyone with an obligation to engage in the practice.
The rules of recognition only define what the practice is, and they can say nothing on the question of whether one should or should not engage in it. But of course, once one does engage in the practice, playing the role of judge or some other legal official, as it were, there are legal obligations defined by the rules of the game. In other words, there is nothing special in the idea of a legal obligation to follow the rules of recognition.
But again, the constitutive rules of soccer cannot settle for anyone the question of whether they should play soccer or not. Similarly, the rules of recognition cannot settle for the judge, or anyone else for that matter, whether they should play by the rules of law, or not. They only tell us what the law is. Unlike chess or soccer, however, the law may well be a kind of game that people have an obligation to play, as it were.
But if there is such an obligation, it must emerge from external, moral, considerations, that is, from a general moral obligation to obey the law. The complex question of whether there is such a general obligation to obey the law, and whether it depends on certain features of the relevant legal system, is extensively discussed in the literature on political obligation. A complete theory about the normativity of law must encompass these moral issues as well. See the entries on political obligation and legal obligation.
More recently, however, a number of philosophers have started to question the idea that there is something unique to the normativity of law, inviting us to see how laws might affect our reasons for action in ways that are not closely tied to the nature of law Greenberg , Enoch , Marmor []. Some of these views e. In the last two decades of the 20th century, new challenges to general jurisprudence, and particularly to legal positivism, have taken an interesting methodological turn.
These, and other resultant methodological challenges to traditional general jurisprudence are taken up in the next section. It would be fair to say, however, that in the last few years, many legal philosophers have expressed a growing frustration with these traditional debates about the nature of law, calling for legal philosophy to move beyond the Hart-Dworkin debates and explore new avenues of research.
Some of these new critics are content to abandon the project altogether, declaring the death of general jurisprudence Hershovitz Others, however, are engaged in exploring new challenges. One emerging area of research concerns the artifact nature of law, aiming to learn something about the nature of law from the fact that law seems to be an artifact, created and sustained by humans for particular purposes.
See, for example, Burazin et al. Another new and potentially fruitful area of research focuses on applications of philosophy of language to law, brining new developments in philosophy of language, particularly in pragmatics, to bear on questions of legal interpretation and understanding of legal content Asgeirsson forthcoming, Asgeirsson , Marmor This linguistic direction is not uncontroversial, however; some legal philosophers express skepticism about the idea that legal content is determined by linguistic factors Greenberg and there is an ongoing debate about these issues.
Finally, there also seems to be a growing interest in recent developments in metaphysics that might bear on a theory about the nature of law, and even debates about meta-metaphysics are beginning to emerge in the context of general jurisprudence, purporting to show that ways in which we think about the tasks of metaphysical inquiry may bear on ways we think about the law Rosen For example, if the main task of metaphysics is to determine what really exists in the world, irrespective of what we think about it or ways in which we represent the world, metaphysics may not have much to say about the nature of law or, perhaps, it may indicate that only a scientific approach to jurisprudence can yield metaphysically respectable results.
If, however, the task of metaphysical inquiry is also to figure out what is more foundational than something else, giving us a hierarchical structure of the world, where some things ground others, then metaphysics might be a very fruitful framework to work with in trying to elucidate the foundations of legality and legal phenomena more generally. This potential metaphysical interest in jurisprudence is at its infancy presently, and time will tell if this new approach gets us interesting results.
When it comes to the methodology of jurisprudence, we find two main issues. While one is not directly concerned with normativity, the second is.
The first asks about the aims and success criteria for philosophical theories about the nature of law:. What is the target that first-order theories of law aim to capture, and when do they succeed in doing so? Are first-order legal theories inherently or necessarily evaluative or can they be purely descriptive? The first important class of methodological questions in jurisprudence concerns the target of first-order theories of law—that is, what phenomenon such theories aim to provide an account of.
In taking a stand on what the proper target of a first-order legal theory is, one incurs a number of other methodological commitments. These include adopting a view about when such theories are successful, taking a stand on what sort of data such theories aim to systematize and explain, and determining what sorts of arguments are legitimately used in deciding between one of these theories and its competitors. There are five main families of views on this question.
One view takes jurisprudence to be a form of conceptual analysis, which is to say that theories of law aim to provide an account of some concept of law. A second sort of view adopts a more skeptical stance towards the methodology of conceptual analysis and takes theories of law to be in the business of offering a reductive explanation of law itself, not some concept of it. Another recent view sees general jurisprudence as just another branch of metanormative inquiry, which renders it continuous with other philosophical fields like metaethics.
Fourth, the prescriptive view takes it that the aim of a theory of law is to specify the notion of law that it would be most desirable for us to adopt. In what follows, each of these five views, as well as some of the main issues they face, will be discussed in more depth.
On conceptual analysis views, theories of law aim to capture the concept of law and they succeed to the extent that they provide a coherent account of the relevant data about that concept and related concepts. In their simplest form, such intuitions can be thought of as judgments about whether the relevant concept does or does not apply to particular cases. Accordingly, on this sort of view, a theory of law aims to provide an account of the conditions under which the target concept of law or one of its cognates applies.
The idea is that the theorist starts with a putative set of criteria for the correct application of the target concept, and then she tests this account against her intuitions about that concept. If the account entails that the concept applies to particular cases that it intuitively does not apply to, then this provides reason to reject or revise the account in question. By contrast, if the account entails that the target concept applies to certain cases and this is the intuitively correct result, this tends to provide affirmative support for the account.
The account successfully captures the target concept to the extent that it yields intuitively correct results about particular cases, and does so in an explanatorily satisfying way as opposed to an ad hoc manner.
For a more in depth discussion of the methodology of conceptual analysis as applied to the concept of law, see Shapiro , 16— Jurisprudence has been influenced by two main ways of understanding the relevant intuitions or data that theories of law aim to systematize. This, in turn, is due to the fact that one might understand concepts themselves, and our intuitions about them, in two different ways.
Accordingly, we find two main varieties of the conceptual analysis view of methodology. The first understanding of concepts takes concept possession to be mainly a matter of linguistic competence.
It arguably traces back to the kind of ordinary language philosophy associated with J. Austin and Gilbert Ryle Marmor , — However, this understanding of concept possession has drawbacks. The argument may be summarized as follows.
If so, the argument runs, legal theories cannot explain disagreement about the grounds of law, that is, about the conditions of legal validity.
But now a dilemma arises. Either legal practitioners possess the same concept of law or they do not. If they do possess the same concept, then it seems they cannot fail to agree about what it takes for a norm to count as law. After all, they all know when the word expressing their shared concept of law applies.
But this is implausible, since legal practice in fact is rife with disagreement about what the grounds of law are and thus, what counts as law or as legal. On the other hand, if legal practitioners do not share the same concept of law, then their disagreement about what the grounds of law are must just be due to the fact that they are talking past one another. But that, too, is implausible. If, in light of this argument, we are to abandon the idea that first-order legal theories are semantic theories, there are two obvious ways to proceed.
First, one might simply abandon the idea that legal theories are exercises in conceptual analysis. More on that in sub-section 2. This suggests a second, richer form of conceptual analysis that legal theorists might be engaged in. The basic idea behind the richer view is to take it that concept possession, rather than merely being a matter of knowing when words apply, involves something meatier: namely, the possession of a wide range of substantive beliefs or intuitions about the concept, its essential features and its proper application.
The assumption is that the intuitions one is disposed to have in virtue of possessing the concept of law will be fertile enough to constitute a particular substantive conception of what the law is and how it functions. The aim of a theory of law, then, would be to systematize these pre-theoretic judgments about the concept of law in order to provide an account of some substantive conception of law. This sort of richer view of concept possession is discussed, e.
It is perhaps also the sort of view presupposed by Hart. On this view, legal disagreement remains possible because while practitioners might all be using the same concept of law, the richness of the concept allows that they nonetheless might not possess the concept determinately enough, or understand its application conditions thoroughly enough, to guarantee consensus on theoretical questions about what the grounds of law actually are.
However, also this richer understanding of concept possession, and the meatier picture of conceptual analysis it gives rise to, has been widely criticized Marmor , —; Raz , 10; Leiter , — One question that immediately arises is which concept of law, exactly, constitutes the proper target of a theory of law.
Is it the concept of law that is possessed by the legal practitioners in a particular jurisdiction? Or is it some universally shared concept of law?
Worries loom either way. If a legal theory only aims to capture the concept of law employed in a particular jurisdiction, then that would render the theory parochial and it might lose its interest for those who are not concerned with that particular jurisdiction. After all, as philosophers, it seems that it is the nature of law itself that we care about understanding Raz , 7, Granted, there are interesting sociological questions to be asked about what various groups of people believe to be the case about how law functions.
But it is not obvious that there is anything distinctively philosophical about such questions. See also the entry on concepts , section 5. Still, one might wonder whether this route to investigating the nature of law itself would be the most effective strategy to employ, given its indirectness. Why limit ourselves to asking questions about concepts if law can be studied directly? A very different response would be to adopt a Platonist account of concepts, according to which they are not mental representations at all, but rather abstract objects akin to the objects of mathematical inquiry.
The concept of law, then, would be the abstract object one must grasp in order to think about law. Accordingly, it is this abstract object— the concept of law—that philosophers care about and aim to investigate using the method of conceptual analysis cf.
Bealer Nonetheless, this view of concepts faces familiar objections. For one, an account is needed of how we can have access to the concept of law, conceived of as an independently existing abstract object. Moreover, even if we can access it, a puzzle arises about how different people who all determinately grasp the concept of law could possibly end up disagreeing about its nature Sarch , — Finally, while it might be plausible that a priori disciplines like mathematics and logic aim to investigate abstract objects see the entry on platonism in the philosophy of mathematics , it is not clear that the investigation of a social phenomenon like the law, which is heavily dependent on human beliefs, attitudes and behavior, can be understood analogously.
While mathematicians might be investigating the nature of abstract objects like numbers or sets, it seems more doubtful that legal philosophers are investigating the abstract object law. Given the above doubts about conceptual analysis, several views have been suggested according to which first-order legal theories are primarily in the business of describing and explaining the nature of law itself , not any concept of it.
Reductionist and naturalistic views fall into this category. As noted below, such views need not completely eschew the armchair methods just sketched, but to the extent these methods remain viable, a very different explanation of their defensibility would have to be given.
In particular, reductionist views take it that illuminating the nature of law is a matter of explaining what the law is, and how it operates, in terms of more foundational facts. As a result, first-order theories of law succeed to the extent that they accomplish this in an explanatorily powerful way Marmor The goal of a first-order theory, on this sort of view, is to offer a metaphysical reduction of law: that is, to show that the phenomenon of law is actually constituted by, and fully reducible to, some other more foundational type of phenomenon in the way that chemistry could in principle be reduced to particle physics.
Thus construed, positivism, for example, would seek to explain the nature of law by reducing facts about what the law is, how it functions and what it requires, to more foundational social facts—e. By providing a reduction of this kind, a theory like positivism purports to illuminate the phenomenon of law itself by breaking it down into its constituents and explaining how they together make up the complex social practice that is the law. For more on metaphysical reduction in general, see Schroeder , 61—83; see also the entry on scientific reduction.
One well-known type of reductionist view is naturalized jurisprudence. Brian Leiter has been the most prominent defender of this position Leiter But what is characteristic of naturalized jurisprudence is that it also insists that a purely empirical methodology should be used in doing so Leiter , —81, — See also the entry on naturalism in legal philosophy. Naturalists might part company with adherents of other reductionist views over whether or not the armchair methods of philosophers, and related appeals to intuitions, thought experiments and the like, are misguided.
The naturalist is likely to reject this mode of inquiry, while other reductionists may be more amenable to using it. A reductionist could in principle defend this sort of inquiry, for instance, by claiming that our particular-case intuitions involve a concept that we have acquired from experience with legal practice, and so such intuitions can be one useful source of information about the nature of law itself.
Leiter argues that our intuitions about law are too unreliable to be afforded much epistemic weight as others have argued with respect to intuitions in other areas of philosophy Leiter , , ; cf. Cummins This methodological view, however, raises questions about why the legal philosopher should study only judicial behavior and not something else.
More generally, the naturalist owes an account of what features of law are most in need of explication and why. A different sort of concern that arises for reductionist views and perhaps naturalistic views as well is that it may pose particular problems for positivism. Specifically, if law is a normative phenomenon that gives rise to legal obligations, one might worry that it is not possible to reduce legal facts i. One might think that this would impermissibly transgress the familiar though not uncontroversial is-ought gap.
For a discussion of this sort of worry about positivism, see Shapiro , 47— In response, one route that positivists who want to be reductionists could take is to maintain that legal facts really are descriptive in nature, not genuinely normative. In particular, such positivists might claim that facts about what legal obligations we have simply are descriptive facts about what the law holds that we ought to do—not normative facts about what we really ought to do Shapiro , ; see also Hart , Another recent methodological view developed by Plunkett and Shapiro takes general jurisprudence to be just another branch of metanormative inquiry.
The latter kind of inquiry as a general matter aims to explain how normative thought, talk, and entities if any fit into reality. Metaethics is another branch of metanormative inquiry, which focuses on how ethical thought, talk and entities fit into reality. On this view, jurisprudential inquiry would be continuous with—and methodologically quite similar—to the work done in other areas of normative inquiry, especially ethics and aesthetics.
One question that arises for this position, however, concerns the extent to which this is a distinct methodology from those discussed above. Thus, Dworkin argues, a judge should strive to interpret a case in roughly the following way:.
Thus, a legal principle maximally contributes to such a justification if and only if it satisfies two conditions:. The most familiar occasion of interpretation is conversation.
We interpret the sounds or marks another person makes in order to decide what he has said. Artistic interpretation is yet another: critics interpret poems and plays and paintings in order to defend some view of their meaning or theme or point. General theories of law must be abstract because they aim to interpret the main point and structure of legal practice, not some particular part or department of it.
But for all their abstraction, they are constructive interpretations: they try to show legal practice as a whole in its best light, to achieve equilibrium between legal practice as they find it and the best justification of that practice. So no firm line divides jurisprudence from adjudication or any other aspect of legal practice Dworkin , p.
Hart distinguishes two perspectives from which a set of legal practices can be understood. Hart understands his theory of law to be both descriptive and general in the sense that it provides an account of fundamental features common to all legal systems-which presupposes a point of view that is external to all legal systems. For his part, Dworkin conceives his work as conceptual but not in the same sense that Hart regards his work:.
We all-at least all lawyers-share a concept of law and of legal right, and we contest different conceptions of that concept. Positivism defends a particular conception, and I have tried to defend a competing conception. We disagree about what legal rights are in much the same way as we philosophers who argue about justice disagree about what justice is.
I concentrate on the details of a particular legal system with which I am especially familiar, not simply to show that positivism provides a poor account of that system, but to show that positivism provides a poor conception of the concept of a legal right Dworkin , These differences between Hart and Dworkin have led many legal philosophers, most recently Bix , to suspect that they are not really taking inconsistent positions at all.
Normative jurisprudence involves normative, evaluative, and otherwise prescriptive questions about the law. Laws limit human autonomy by restricting freedom. Criminal laws, for example, remove certain behaviors from the range of behavioral options by penalizing them with imprisonment and, in some cases, death. Likewise, civil laws require people to take certain precautions not to injure others and to honor their contracts.
John Stuart Mill provides the classic liberal answer in the form of the harm principle:. The only purpose for which power can rightfully be exercised over any member of a civilised community against his will is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant. Over himself, over his own body and mind, the individual is sovereign Mill , pp.
While Mill left the notion of harm underdeveloped, he is most frequently taken to mean only physical harms and more extreme forms of psychological harm. Many philosophers believe that Mill understates the limits of legitimate state authority over the individual, claiming that law may be used to enforce morality, to protect the individual from herself, and in some cases to protect individuals from offensive behavior.
The most famous legal moralist is Patrick Devlin, who argues that a shared morality is essential to the existence of a society:. For society is not something that is kept together physically; it is held by the invisible bonds of common thought.
If the bonds were too far relaxed the members would drift apart. A common morality is part of the bondage.
The bondage is part of the price of society; and mankind, which needs society, must pay its price. Devlin , p. Hart points out that Devlin overstates the extent to which preservation of a shared morality is necessary to the continuing existence of a society. While enforcement of certain social norms protecting life, safety, and property are likely essential to the existence of a society, a society can survive a diversity of behavior in many other areas of moral concern-as is evidenced by the controversies in the U.
Dworkin , p. Thus, for example, a law requiring use of a helmet when riding a motorcycle is a paternalistic interference insofar as it is justified by concerns for the safety of the rider. According to Dworkin, there are goods, such as health and education, that any rational person needs to pursue her own good-no matter how that good is conceived.
Dworkin offers a hypothetical consent justification for his limited legal paternalism. On his view, there are a number of different situations in which fully rational adults would consent to paternalistic restrictions on freedom. Nevertheless, he argues that there are limits to legitimate paternalism: 1 the state must show that the behavior governed by the proposed restriction involves the sort of harm that a rational person would want to avoid; 2 on the calculations of a fully rational person, the potential harm outweighs the benefits of the relevant behavior; and 3 the proposed restriction is the least restrictive alternative for protecting against the harm.
Joel Feinberg believes the harm principle does not provide sufficient protection against the wrongful behaviors of others, as it is inconsistent with many criminal prohibitions we take for granted as being justified. If the only legitimate use of the state coercive force is to protect people from harm caused by others, then statutes prohibiting public sex are impermissible because public sex might be offensive but it does not cause harm in the Millian sense to others. Natural law critics of positivism for example, Fuller frequently complain that if positivism is correct, there cannot be a moral obligation to obey the law qua law that is, to obey the law as such, no matter what the laws are, simply because it is the law.
As Feinberg puts the point:. The positivist account of legal validity is hard to reconcile with the [claim] that valid law as such, no matter what its content, deserves our respect and general fidelity.
Even if valid law is bad law, we have some obligation to obey it simply because it is law. The idea is this: if what is essential to law is just that there exist specified recipes for making law, then there cannot be a moral obligation to obey a rule simply because it is the law. Contemporary positivists, for the most part, accept the idea that positivism is inconsistent with an obligation to obey law qua law compare Himma , but argue that the mere status of a norm as law cannot give rise to any moral obligation to obey that norm.
While there might be a moral obligation to obey a particular law because of its moral content for example, laws prohibiting murder or because it solves a coordination problem for example, laws requiring people to drive on the right side of the road , the mere fact that a rule is law does not provide a moral reason for doing what the law requires. Indeed, arguments for the existence of even a prima facie obligation to obey law that is, an obligation that can be outweighed by competing obligations have largely been unsuccessful.
Arguments in favor of an obligation to obey the law roughly fall into four categories: 1 arguments from gratitude; 2 arguments from fair play; 3 arguments from implied consent; and 4 arguments from general utility. On this view, a person who accepts benefits from another person thereby incurs a duty of gratitude towards the benefactor. And the only plausible way to discharge this duty towards the government is to obey its laws.
Nevertheless, as M. Smith points out , p. John Rawls argues that there is a moral obligation to obey law qua law in societies in which there is a mutually beneficial and just scheme of social cooperation. What gives rise to a moral obligation to obey law qua law in such societies is a duty of fair play: fairness requires obedience of persons who intentionally accept the benefits made available in a society organized around a just scheme of mutually beneficial cooperation.
There are a couple of problems here. Second, even in such societies, citizens are not presented with a genuine option to refuse those benefits.
For example, I cannot avoid the benefits of laws ensuring clean air. But accepting benefits one is not in a position to refuse cannot give rise to an obligation of fair play. The argument from consent grounds an obligation to obey law on some sort of implied promise. As is readily evident, we can voluntarily assume obligations by consenting to them or making a promise. Of course, most citizens never explicitly promise or consent to obey the laws; for this reason, proponents of this argument attempt to infer consent from such considerations as continued residence and acceptance of benefits from the state.
Nevertheless, acceptance of benefits one cannot decline no more implies consent to obey law than it does duties of fair play or gratitude. Moreover, the prohibitive difficulties associated with emigration preclude an inference of consent from continued residence. Finally, the argument from general utility grounds the duty to obey the law in the consequences of universal disobedience.
Since, according to this argument, the consequences of general disobedience would be catastrophic, it is wrong for any individual to disobey the law; for no person may disobey the law unless everyone may do so. Punishment is unique among putatively legitimate acts in that its point is to inflict discomfort on the recipient; an act that is incapable of causing a person minimal discomfort cannot be characterized as a punishment.
In most contexts, the commission of an act for the purpose of inflicting discomfort is morally problematic because of its resemblance to torture. For this reason, institutional punishment requires a moral justification sufficient to distinguish it from other practices of purposely inflicting discomfort on other people.
Justifications for punishment typically take five forms: 1 retributive; 2 deterrence; 3 preventive; 4 rehabilitative; and 5 restitutionary.
0コメント