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Law and Morality - juris
Jurisprudence (University of Oxford)
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Law and Morality
General
The first thing to note is that most legal theorists don’t think that morals are subjective. As
they are the ones who have studied this forever, we should just concede to this. The key
question in this is how do we decide what law is?
Essential Reading
J Finnis, Natural Law and Natural Rights (1980) chs 1, 10 and 12
Finnis says that we describe things by giving its function, for example. We refer to a clock as
telling the time. We aren’t saying that that is a necessary feature of clocks but we are saying
that that it what a central case will consist of. He believes that the purpose of law is to
provide coordination of conduct for the common good.
Summary:
i. A theory that highlights everything highlights nothing;
ii. To understand X we must (i) understand X’s point or purpose, and (ii) distinguish
between central and peripheral cases of X;
iii. An illuminating theory of X is a theory of X’s central case: it highlights features by
means of which X serves its point or purpose;
iv. The point of law is to co-ordinate behaviour for the common good of the
community;
v. An illuminating theory of law is a theory of law’s central case: it highlights features
by means of which law co-ordinates for the common good.
Finnis also considers what constitutes a central case. He believes that:
1. Rules are made by a legal authority in accordance with regulative legal rules
2. Generally (but not always) supported by sanctions
3. Reasonably directed to solving a community’s co-ordination problems, for the sake of
the common good
4. Law is in accordance with the main qualities of the Rule of Law: specificity and
minimisation of arbitrariness etc
Finnis then considers the problem of laws. He accepts the sources thesis, identifying legal
validity according to social facts. However, this isn’t truly in line with legal positivism
(Finnis is a natural lawyer) as he considers this a sort of watered-down version of law as it
doesn’t fit the central case model. This is because he sees law as having a moral point – the
realisation of justice and the common good.
the reasons people have for establishing systems of positive law (with power to override
immemorial custom), and for maintaining them (against the pull of strong passions and
individual self-interest), and for reforming and restoring them when they decay or collapse,
include certain moral reasons, on which many of those people often act. And only those
moral reasons suffice to explain why such people's undertaking takes the shape it does,
giving legal systems the many defining features they have.
It means that abhorrent law is still law, although there is no moral obligation to obey as the
stipulations of those in authority have presumptive obligatory force only in order to secure
Downloaded by olinder seth ()
Law and Morality - juris
Jurisprudence (University of Oxford)
Scan to open on Studocu
Studocu is not sponsored or endorsed by any college or university
Downloaded by olinder seth ()
, lOMoARcPSD|59658805
Law and Morality
General
The first thing to note is that most legal theorists don’t think that morals are subjective. As
they are the ones who have studied this forever, we should just concede to this. The key
question in this is how do we decide what law is?
Essential Reading
J Finnis, Natural Law and Natural Rights (1980) chs 1, 10 and 12
Finnis says that we describe things by giving its function, for example. We refer to a clock as
telling the time. We aren’t saying that that is a necessary feature of clocks but we are saying
that that it what a central case will consist of. He believes that the purpose of law is to
provide coordination of conduct for the common good.
Summary:
i. A theory that highlights everything highlights nothing;
ii. To understand X we must (i) understand X’s point or purpose, and (ii) distinguish
between central and peripheral cases of X;
iii. An illuminating theory of X is a theory of X’s central case: it highlights features by
means of which X serves its point or purpose;
iv. The point of law is to co-ordinate behaviour for the common good of the
community;
v. An illuminating theory of law is a theory of law’s central case: it highlights features
by means of which law co-ordinates for the common good.
Finnis also considers what constitutes a central case. He believes that:
1. Rules are made by a legal authority in accordance with regulative legal rules
2. Generally (but not always) supported by sanctions
3. Reasonably directed to solving a community’s co-ordination problems, for the sake of
the common good
4. Law is in accordance with the main qualities of the Rule of Law: specificity and
minimisation of arbitrariness etc
Finnis then considers the problem of laws. He accepts the sources thesis, identifying legal
validity according to social facts. However, this isn’t truly in line with legal positivism
(Finnis is a natural lawyer) as he considers this a sort of watered-down version of law as it
doesn’t fit the central case model. This is because he sees law as having a moral point – the
realisation of justice and the common good.
the reasons people have for establishing systems of positive law (with power to override
immemorial custom), and for maintaining them (against the pull of strong passions and
individual self-interest), and for reforming and restoring them when they decay or collapse,
include certain moral reasons, on which many of those people often act. And only those
moral reasons suffice to explain why such people's undertaking takes the shape it does,
giving legal systems the many defining features they have.
It means that abhorrent law is still law, although there is no moral obligation to obey as the
stipulations of those in authority have presumptive obligatory force only in order to secure
Downloaded by olinder seth ()
