THE JOURNAL JURISPRUDENCE
LAW: LEX VS. IUS
Dr. Jur. Eric Engle
Habilitand (Post Doc.)
Universität Bremen
Abstract: Rather than seeing law as a |
answer to that question. That answer |
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vague “norm” or overly precise and |
will not be exclusive: other |
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possibly untenable “rights” |
this |
definitions of law than the one that |
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article argues for a simpler |
will be presented here exist. The |
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functionalist definition of law as a set |
answer may even be incomplete. |
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of conditionals associated |
with |
However the answer proposed will |
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imperatives. As such it hopes to |
be internally consistent. It will also |
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bypass two fruitless parallel debates |
explain and permit prediction of |
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which however do not address each |
what goes on in the field of law. Law |
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other: 1) the nature of “norms” 2) |
is best understood as a term with |
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the nature of “rights”. |
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many meanings. By |
distinguishing |
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between natural law, positive law, |
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I. WHAT IS LAW? |
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law as a prescription and law as a |
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description we can coerce the |
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One of the fundamental questions of |
otherwise |
ambiguous |
term |
into |
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legal theory is what is meant by the |
tractable |
forms. |
Further |
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term “law”.1 This essay proposes an |
distinguishing between law (lex) and |
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justice (ius) allows us to focus on |
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1 Definitions of law abound: E.g., the “bad |
different aspects of both command |
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man theory” ("The prophecies of what the |
and right.2 |
Unlike Kelsen,3 I |
regard |
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courts will do in fact, and nothing more |
law as consisting of a conflicting set |
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pretentious, are what I mean by the law." |
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Holmes, (1897) Path of the Law in David |
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Kennedy & Fisher (2007) at 31.) but also |
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Cicero (arguing law is inherently moral: |
Hans Kelsen, Théorie Générale du Droit et |
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“Est quidem vera lex, recta ratio, naturae |
de l'Etat Paris: Bruylant (1997) p. 166. |
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congruens, diffusa in omnes, constans, |
2 Hobbes clearly makes the distinction |
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sempiterna, quae vocet ad officium jubendo, |
between binding law (lex) and justice (ius) |
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vetando a fraude deterreat, quae tamen |
(see generally Hobbes, Leviathan). Hobbes, |
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neque probos frustra jubet aut vetat, nec |
Leviathan, Richard Tuck ed., (1996) at 91. |
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improbos jubendo aut vetando movet.”True |
Aristotle in contrast seems to believe that |
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law is right reason in accord with nature. |
law and justice are congruent sets. |
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Cicero, (51 b.c.) De Republica) and of course |
3 Hans Kelsen, Théorie Générale du Droit et |
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Kelsen who argues that the law is a “norm” |
de l'Etat Paris: Bruylant (1997) p. 166. |
(2008) J. JURIS 31
ENGLE ON LAW: LEX VS. IUS
of conditional statements and consequent imperatives rather than as a hierarchically harmonious set of norms.4 Further, I argue that
4 "A plurality of norms forms a unity, a system, an order, if the validity of the norms can be traced back to a single norms as the ultimate basis of validity. This basic norm qua common source constitutes the unity in the plurality of all norms forming a system. That a norm belongs to a certain system follows simply from the fact that the validity of the norm can be traced back to the basic norm constituting this system. Systems of norms can be distinguished into two different typse according to type of basic norm constituting the system. Norms of the first type are 'valid' by virtue of their substance; that is, the human behavior specified by these norms is to be regarded as obligatory because the content of the norms has a directly evident quality that confers validity on it. And the content of these norms can be traced back to a basic norm under whose content the content of the norms forming the system is subsumed, as the particular under the general. Norms of this type are the norms of morality. For example, the norms 'you shall not lie', 'you shall not cheat', 'keep your promise', and so on are derived from a basic norm of truthfulness. From the basic norm 'love your neighbour', one can derive the norms 'you shall not harm others', 'you shall help those in need', and so on.
The basic norm of a given moral order is of no further concern here. What matters is knowing that the many norms of a moral order are already contained in its basic norm, just as the particular is contained in the general; thus, all particular moral norms can be derived from the general basic norm by way of an act of intellect, namely, by way of a deduction fom the general to the particular. The basic norm of morality has a substantive, static character."
Hans Kelsen, An Introduction to the Problems of Legal Theory (RR1) Oxford: Oxford University Press, 1992 Page
(2008)
normative inference is not only possible, it is also necessary if law is to be something other than mere force
II. METHODOLOGY
A. LEGAL SCIENCE
In order to determine what law is we must first understand what is meant by legal science.5 This is because if law cannot be the object of scientific inquiry then the question “what is law” could not be answered at all. This paper proposes that law can in fact be the object of scientific inquiry. However, legal science, like any of the human sciences, is not as exact (but hopefully as exacting) as any of the natural sciences.
In the natural sciences, e.g. physics, chemistry etc., science is nomothetic:6 that is, it poses
5 For an exposition and
critique of competing ideas of legal science see Howard Schwber, The
"Science" of Legal Science: The Model of the Natural Sciences in
6 Christiane et Ota Weinberger Logik Semantik Hermeneutik München: Beck'sche Elementarbücher, (1979). Page 38.; Stanley
J. JURIS 32
THE JOURNAL JURISPRUDENCE
principles which themselves are laws strictu sensu.7 Nomotheses cannot be derogated from. For example, every time that water is heated it expands; if water is sufficiently heated at 1 atmosphere of pressure it will eventually boil and evaporate.8 The objects of natural sciences have no volition – they literally must react as they do.
This is not the case in the human sciences generally, including legal science. It is not possible to state that every time event X occurs outcome Y will follow when the object of event X is a human or a group of humans. The objects of human sciences, unlike the objects of natural sciences, are people and groups of people. People as individuals definitely have will (volition), the capacity to act upon
L Paulson (1990) Kelsen on legal interpretation
Legal Studies 10 (2) ,
7 For an argument that law
is in fact nomothetic (or at least distinguished from social science in
that it must appear nomothetic…) see Jeremy A. Blumenthal, Law and
Social Science in the
8 For a good recapitulation of Popper’s views on facticity in science see: Eric Dodson Greenberg, FALSIFICATION AS FUNCTIONALISM: CREATING A NEW MODEL OF SEPARATION OF POWERS, 4 Seton Hall Const. L.J. 467,
and interact with their environment. Because of this capacity it is impossible to propose nomotheses about human behaviour. Even if most people will react in a given way to a certain stimulus some may not and all can at least claim to have been able to have reacted otherwise. Human science cannot discover “laws” but only general trends and tendancies – which nonetheless is knowledge.
This is not to say that there can be no human science. Many human activities are quantifiable. Some are verifiable. That is why it is possible to make statements regarding human tendencies and trends, albeit with less exactitude than in the natural sciences. It is even possible for the human sciences to make general predictions. By a comparison of the differing scientific opinions about a certain human activity it is possible to develop a well informed viewpoint and to make generalizations and predictions thereon. However, though the dialectical method can determine which opinions are roughly correct, that determination is still only approximate. One must both recognize the possibility and limitations of human sciences.
(2008) J. JURIS 33
ENGLE ON LAW: LEX VS. IUS |
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B. THE EMPIRICAL METHOD9 |
also where knowledge is not |
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possible. |
This paper has already hinted that one test to determine whether a position is scientifically known is to determine whether a prediction can be made based upon it. If a fact is known then we may be able to make a prediction based upon it. Further, though a fact be unknown it may nonetheless be knowable, though at present unknown. An unknown fact may of course also be unknowable. But an unknown fact cannot be the basis of science – although it can be the basis of speculation and hypotheses. Ideas may be true, false, unknown and possibly also unknowable.
Facts are knowable if they can be verified. Facts are verified through empirical testing. By empirical verification it is possible to know that in every observed instance of X, Y occurs, and from which we may infer that in future instances of X, Y will recur. Thus the material basis of science explains why and to what extent knowledge is possible – and
Although empirical verification in human sciences is less exact than in natural science it is still possible. A theory can be said to be verified if there is a correspondence between material reality and the predicted outcome.10 What are the predicted outcomes in law?
When we look at the law we see law books, courts, police, lawyers, legislators and citizens. We see the predictions of a legislator or judge as to what will happen if a person does a certain act (conditionals) or what will happen to person X (commands). However, sometimes what is written in the law books, i.e. what is predicted, is not at all an accurate prediction of what actually happens. And many times events occur which are not addressed in the law books. What are we to make of the absence of correlation between law in the books and life?
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10 Popper, (1957) Science: Conjectures and |
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9 See, generally, Bacon, Francis, Novum |
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Refutations |
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Organon |
(1620). |
Bacon |
correctly |
http://cla.calpoly.edu/~fotoole/321.1/pop |
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emphasizes the experimental method but |
per.html Also see: Popper, (1963) "Science |
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wrongly rejects the dialectic and is for that |
as Falsification" in Conjectures and Refutations |
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reason the source of the limitations in |
(1963); Karl Popper, Objective Knowledge: |
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An Evolutionary Approach (1972). |
(2008) J. JURIS 34
THE JOURNAL JURISPRUDENCE
C. SCHOLARLY LAW VERSUS
PRACTICAL LAW
There are two methods by which we could attempt to
answer the question “how are we to explain and define the absence of
correlation between law in the books and life”. The idealist approach
(i.e. scholasticism or
11See, Plato Phaedo, available at: http://classics.mit.edu/Plato/phaedo.1b.txt
12Plato,
Republic especially book VI (e.g., “And do you not know also that
although they make use of the visible forms and reason about them, they
are thinking not of these, but of the ideals which they resemble; not of
the figures which they draw, but of the absolute square and the
absolute diameter, and so on
method does not lead to the development of empirically verifiable positions it is not in fact be scientific. It could be mythology. It could be pure formal representation. But it could not be science and certainly not applied science. This paper specifically rejects the idealist perspective and acknowledges it in order to be properly distinguished from it.
The other response to the question “what should be
the reaction of a legal scientist to the fact that statements of
legislators and even judges and the actions of persons do not always
strongly correlated (and sometimes do not correlate at all)?” is to
regard “law” as commonly understood, critically. “Scholarly Law” – law
in the books, i.e. the statements of legislators and judges, is a
description of what a ruling class thinks should happen. However, the
daily material reality is what in fact happens. The first can be called
“scholarly law”
(2008) J. JURIS 35
ENGLE ON LAW: LEX VS. IUS
does in fact happen (“practical law”) is too far out of balance a revolution occurs and a new ruling class takes control. The differing possible relations between law in the books and law in the streets are discussed further below.
III. LAWS ARE CONDITIONALS AND
IMPERATIVES
When we look at law in the books we see that all laws are stated as conditionals which if actuated will trigger imperatives. That is, all laws are of the form "if... then". If the conditional is fulfilled then the imperative, reward or punishment, should be imputed to the subject of the conditional statement. The degree of correspondence between these conditionals and their outcomes is the measure of the efficacity of the regime promulgating law.
The fact that a direct correspondence between the conditional and imperative commands of law is in fact impossible due to free will explains why legal science cannot be considered nomothetical. A nomothetical science, e.g., natural sciences, makes statements which are laws in the sense that on every
occurrence of X, outcome Y will follow. The laws of any legal system are almost always imperfectly enforced. Thus, legal science is not nomothetical. To speak of legal science as a nomothetical science like the natural sciences would require that every law be enforced at all times and in all places and that humans behave invariably. That is clearly not the case.13
However, while it is clearly true that law is but imperfectly enforced it is also clear that law is generally enforced14 and perhaps even more often than not just. So we can speak of a legal science which makes generalized predictions as to the probability of event Y following event X. Although legal science is not nomothetical, it is dialectical and
13H. Kelsen,: "L'efficacité n'est pas une <<condition per quam>> de la validité" in Le Positivisme Juridique, M. Troper, C. Grzegorczyk, (editeurs) Paris: LGDJ (1992) page 326.
14"L'efficacité de l'ordre juridique tout entier est la condition nécessaire de la validité de chacune des normes particulières
de cet ordre. C'est une condition sine qua non mais non une condition per quam. L'efficacité de l'ordre juridique global est la condition, mais non la raison de la validité des normes qui le consituent." H. Kelsen,: "L'efficacité n'est pas une <<condition per quam>> de la validité" en La Positivisme Juridique, M. Troper, C. Grzegorczyk, (editeurs) Paris: LGDJ (1992). Page 326.
(2008) J. JURIS 36
is in that sense scientific.15 Legal |
is one element of the superstructure |
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science is dialectical, first, in the |
of a particular mode of production |
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Aristotelian sense of dialogos, that is |
which justifies and defends a |
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as the object of discourse.16 Through |
particular mode of production, i.e. a |
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legal |
given productive base19 (also known |
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opinions we arrive at a better sense |
as infrastructure) at a particular point |
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of the best approximation of the |
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historical |
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laws |
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development is dialectical:20 it is the |
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behavior.17 But legal science is also |
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dialectical in the Marxist sense:18 law |
differing modes of production. Thus, |
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legal science, as one element of the |
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15 "The law is dialectic in a deeper sense |
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superstructure |
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than its adversary process. It mediates most |
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the |
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significantly between right and right.’ ... The |
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historical dialectic which determines |
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only questions that matter for the law are |
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those in which there is something ‘right,’ or |
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good, on both or all sides of the |
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will replace a less developed mode of |
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controversy.... When right exists on both |
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sides of an issue, the job of the law is to |
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accommodate, to adjust, to attempt to |
http://www.marxists.org/archive/marx/ |
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sacrifice as little as possible of what is ‘right’ |
works/1847/10/31.htm |
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on both sides.” Paul Freund cited in Roger |
19 Stuart Bonner "Conquest by Contract: |
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B. Dworkin, Limits: The Role of Law in |
Wealth Transfer and Land Market Structure |
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Bioethical Decision Making |
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in Colonial New Zealand" Law and Society, |
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Aristotle, |
Posterior |
Analytics (ca. |
350 |
Vol. 31, No. 1 2000. p. 47. |
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B.C.) |
Translated by G. R. G. Mure, Book |
20 "En vertu de la loi dialectique, chaque |
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Part |
1. |
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mode de production ou infrastructure en |
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place renferme, dès le début de son |
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and |
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instauration, sa négation interne, qui, plus |
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tard, se déclare ouvertement, par l'apparition |
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classics/aristotl/o4219c.htm |
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au sein de ce mode ou de cette |
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17 Aristotle, Topics, in Aristotle, 1 Great |
infrastructure, |
de |
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forces |
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Books 143 (W.A. Pickarel trans., Cambridge |
productives (outillage, mains d'oeuvre, etc.); |
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1994) (1952). |
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18 E.g., "Any development, whatever its |
nouveau mode de production, une nouvelle |
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substance may be, can be represented as a |
infrastructure économique, |
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series of different stages of development |
rapports |
sociaux, |
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nouvelle |
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that are connected in such a way that one |
superstructure. Le règle de droit, qui fait |
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forms the negation of the other...In no |
partie de cette dernière, se trouve, du même |
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sphere can one undergo a development |
coup, elle même niée par ces nouvelles |
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without negating one's previous mode of |
forces productives: son remplacement par |
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existence." Marx, Moralizing Criticism & |
une règle de droit nouvelle se fait alors |
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Critical Morality, Oct. 1847, in Marx Engels |
sentir, mais comme l'effet, et non comme la |
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Collected Works, Vol.6, p.317 (1847) from |
cause |
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changement |
d'infrastructure." |
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No. |
86, |
Stoyanovitch, La Philosphie du Droit en |
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28, |
1847. |
Available |
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URSS, page 6. Paris: LGDJ (1965). |
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ENGLE ON LAW: LEX VS. IUS
Although our understanding of facts is based on the material base that does not mean that we can ignore the ideology, i.e. the superstructure, which grows out of and justifies that base22 – one element of which is “scholarly law”. We now turn our attention to an analysis of the machinations of the legal system within a given mode of production and more specifically to an analysis of the superstructure of a given mode of production. What is scholarly law?
Scholarly law - law in the books - is law understood as the (supposedly) authoritative statements of legislators and judges and can be analyzed syntactically as consisting at least, and perhaps exclusively, of conditional statements and imperative commands. Most conditionals imply an imperative command activated by occurrence of the condition(s). Similarly, many, but not all, imperative commands are actuated by the occurrence of a conditional of “scholarly law” (law in the books). It is of course possible for a law giver to issue a purely imperative statement or for a
22 Raymond Williams, Base and Superstructure in Marxist Cultural Theory, in Rethinking Popular Culture: Contemporary Perspectives 407 (Chandra Mukerji & Michael Schudson eds.) (1984).
(2008) J. JURIS 38
lawgiver to issue a hortatory conditional statement which in fact triggers no imperative. But the majority of laws invoke imperatives upon occurrence of a condition.
Conditional statements can be further analyzed as consisting of rules and of exceptions to the rule, and even of exceptions to the exception. This process of rule, exclusive exception, and inclusive exception could in theory continue indefinitely.
The conditional statements of the law may be either
procedural rules of positive law or substantive rules which may (or may
not) reflect principles of natural law and/or natural justice.
Substantive rules of law are determined either by procedural elements of
positive law (framework questions which influence practical outcomes)
or by substantive aspects of natural law, natural justice or a
combination thereof. The conditional statements of substantive law are
themselves conditioned and in part determined by procedural rules and by
general principles of law and/or fundamental rights. This paper refers
to these
THE JOURNAL JURISPRUDENCE
creation and enforcement as meta- rules.
IV. META RULES
A. GENERAL PRINCIPLES
To understand
The idea of “general principles of law”, a source of
23 See, e.g. Legal Information Institute, WEX, General Principles of Law available at: < http://topics.law.cornell.edu/wex/internati onal_law> (last visited May 28, 2008) .
24 "Il existe par ailleurs de nombreuses règles non écrites qui sont admises par la conscience collective et qui semble tellement évidentes que le législateur n'a pas estimé devoir les préciser dans un texte de loi : ce sont les principes généraux du droit (exemple : les droits de la défense)." Thierry Smets, "Les sources du Droit", http://users.skynet.be/sky19192/lessourc.h tm
25 Blackstone analyzes the common law as consisting of written law (statutes) and
(2008) J. JURIS 39
ENGLE ON LAW: LEX VS. IUS
generally speaking, though |
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B. FUNDAMENTAL RIGHTS AND |
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they are dimly reflected in the |
RULES OF PROCEDURE |
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embodied as maxims of law.26 |
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rights and given their highest courts |
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maxims of law, which, in civil law, are |
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expressions of general principles of law, as a |
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possible source of the common law. Id. |
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However, he rejects the maxims as a source |
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of law, arguing that they are but expressions |
legislation. Constitutional charters of |
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of custom and that maxims are vague and |
fundamental rights are seen either as |
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inchoate and must be proven via inquiry |
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a reflection of fundamental rights |
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into custom. Id. These maxims of law, |
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in natural law |
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equity and it may be argued that maxims are |
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and natural justice or are themselves |
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in fact expressions of general principles of |
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law, as is the case in the civil legal systems. |
taken as the source of fundamental |
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Examples of such maxims include: sic utero |
rights and freedoms. In functionalist |
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tuo ut alienum non laedes. See Bassett v. |
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Company, 43 N.H. 569, 577 (1862); Swett v. |
terms, the common law charters of |
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Cutts, 50 N.H. 439, 442 (1870). Pacta quae |
rights and freedoms operate similarly |
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contra leges et constitutiones, vel contra |
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bonos mores sunt nullam vim habere |
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indubitati |
Juris est |
Good |
law. |
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Because the common law, as opposed to |
freedoms |
(negatives |
“freedoms |
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and not deduced from general principles, |
from” |
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“rights |
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the simpler and better view is Blackstone's. |
to”) |
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sometimes |
contain |
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Maxims and general principles continue to |
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collective rights as well. General |
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methodological incomprehension of the role |
principles |
of |
law |
/ |
fundamental |
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of general principles as deductive |
rights |
can |
thus |
be |
seen |
as |
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instruments in a system of written law (i.e., |
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the European civilian legal system). Thus in |
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The Harrisburg, the U.S. Supreme Court |
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quite correctly links the ideas of "natural |
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equity and the general principles of law." |
misapprehending the role of general |
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119 U.S. 199, 206 (1886). Blackstone |
principles in legal deduction. This may be |
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appears to be the source of the split on the |
because he assigns the role of general |
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role of maxims and, by extension, general |
principles to ecclesiastical courts, where the |
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principles of law in the common law and |
general principles atrophied. See Blackstone, |
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civil law. One could |
accuse Blackstone |
of |
Commentaries *83. |
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(2008) J. JURIS 40
THE JOURNAL JURISPRUDENCE
conceptually similar. They can be seen structurally as:
•Binding or
•Independent sources of law or reflections of natural law and/or as reflections of natural justice
•Collective or individual
•Negative “freedoms from” or positive “rights to”.27
In whatever form these rules are constituted,
general principles of law and the concepts of fundamental rights and
freedoms are, like procedural rules,
Fundamental rights are essentially “substantive” and so are a more limited concept than general principles of law, which are both “substantive” and “procedural”. But both fundamental rights and general principles of law are generally binding rules and thus they are similar. Because of the similarities
between general principles of law and fundamental
rights and because of the increasing integration of common law and civil
law in the European Union, and for simplicity in our discussion of
What difference, if any, exists between fundamental
rights and fundamental freedoms? The bourgeois revolutions generally
presented and defended negative human freedoms from government intrusion
into the private sphere.29 Those freedoms were asserted by the rising middle class of merchants and
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29 |
See generally, Eric Engle, Universal |
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27 |
See generally, Eric Engle, Universal |
Rigths: A Generational History, 12 Ann. |
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Rights: A Generational History, 12 Ann. |
Surv. Int'l & Comp. L. 219 (2006). |
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Surv. Int'l & Comp. L. 219 (2006). |
30 |
See, e.g., Stephen P. Marks, Emerging |
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28 |
See generally, Kennedy, Duncan. "Form |
Human Rights: A New Generation for the |
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& Substance in Private Law Adjudication," |
1980s?, 33 RUTGERS L. REV. 435, 437 |
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89 Harvard Law Review 1685 (1976). |
(1981). |
(2008) J. JURIS 41
ENGLE ON LAW: LEX VS. IUS
negative “freedoms from” rather than positive “rights to”.31
The socialist revolutions which have occurred since 1848 have increasingly inaugurated not negative “freedoms from” but positive “rights to”. The rising working classes asserted a right to minimal standards of living – maximum hours, minimum wages, and a variety of insurance systems against accident, unemployment, and ill health. Thus the positive “rights to” expressed not only as fundamental constitutional rights but also as often as not in secondary legislative administrative law social insurance systems.32
What these waves of revolutions and the freedoms and rights they inaugurated have in common is a reordering of the principle of distributive justice.33 Under aristocratic rule the principle of distribution was unequal and based on heredity. The bourgeois revolutions inaugurated an era of distribution based, supposedly, on
merit.34 And the socialist revolutions introduced a principle of distribution according to need.35
This historical evolution from negative individual freedoms, i.e. guaranties against coercion, to the affirmative rights of all classes to a decent life demonstrates the historical dialectical character of the elaboration of rights. This dialectic expresses itself in a taxonomy which in turn reflects a theory of justice. General principles, fundamental rights, fundamental freedoms, and rules of procedure are all examples of meta rules: they are rules about making rules. However, procedural rules are purely technical constraints. They do not touch upon substantive justice. As such they are creations of positive law. General principles/fundamental rights in contrast are reflections of the ruling class’s notion of natural justice. They determine – or at least so holds a ruling class – how substantive justice is to be achieved. General principles themselves may express either distributive or corrective justice. This
31 |
See generally, Eric Engle, Universal |
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Rigths: A Generational History, 12 Ann. |
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Surv. Int'l & Comp. L. 219, 257 (2006). |
34 Schiller An die Freude “crowns but to |
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32 |
Eric Engle, Universal Rights: A |
those who have earned them”. |
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Generational History, 12 Ann. Surv. Int'l & |
35 Karl Marx , Critique of the Gotha |
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Comp. L. 219, 259 et seq. (2006). |
Programme |
1875 |
Available |
at: |
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33 |
Aristotle Nicomachean Ethics, 1131 a 24- |
http://www.marxists.org/archive/marx/wo |
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28. |
rks/1875/gotha/index.htm |
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THE JOURNAL JURISPRUDENCE |
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is the interplay of history, law, and |
reflects and express of morality. But |
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justice. |
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the description of a conditional or |
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command of law as law is merely |
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V. LAW AND JUSTICE |
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positive. Unjust laws have no moral |
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A. “LAW” AS DESCRIPTION AND |
prescriptive force but can have a |
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“LAW” AS PRESCRIPTION |
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practical descriptive validity. |
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Our understanding of the law must |
B. LEGAL SCIENCE IS NOT STRICTLY |
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also |
consider |
the |
relationship |
NOMOTHETICAL |
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between law and justice. Some assert |
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that there is a necessary connection |
The dual character of law as |
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between law and justice, and thus |
prescription and law as description |
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that a bad law is not a law at all but |
can also be seen from the fact that |
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merely a sham pretending to be |
legal science is not strictly |
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law.36 This is true in the sense that |
nomothetic because both ruler and |
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one is justified in breaking an unjust |
ruled have volition. Since legal |
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law |
science is not nomothetic we |
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law itself criminal. But it is not true |
account for the variance between |
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in the sense of law as conditional |
what is prescribed (scholarly law) |
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predictive statements. This is the |
and what actually happens (practical |
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difference |
between |
law |
as |
law) as the difference between |
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description and law as a prescription. |
prescription and |
description. |
The |
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The prescriptive power of law |
dual character of law as prescription |
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normative character |
and law as description can be seen |
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the |
idea |
that |
law |
does |
or should |
from the |
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empirical method which shows the |
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36 “What |
of |
the |
many |
deadly, the |
many |
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positive |
validity |
of |
a law |
is |
not |
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pestilential statutes which nations put in |
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dependant on its moral character or |
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force? These no more deserve to be called |
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laws than the rules a band of robbers might |
degree of enforcement.37 Empirically |
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pass in their assembly.... [T]herefore Law is |
we know those who break unjust |
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the distinction between things just and |
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unjust, made in agreement with that primal |
laws do so at their own peril and that |
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and most ancient of all things, Nature; and |
a truly |
unjust |
law |
can |
well |
be |
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in conformity to Nature's standard are |
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framed those human laws which inflict |
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punishment upon the wicked but defend |
37 H. Kelsen,: "L'efficacité n'est pas une |
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and protect the good.” See, Cicero, “Laws” |
<<condition per quam>> de la validité" en |
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in: Clarence Morris, (ed.), Great Legal |
La Positivisme Juridique, M. Troper, C. |
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Philosophers: Selected Readings in Jurisprudence 51 |
Grzegorczyk, (editeurs) Paris: LGDJ (1992) |
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(1997). |
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page 326. |
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(2008) J. JURIS 43
ENGLE ON LAW: LEX VS. IUS
D. POSITIVE LAW AND NATURAL
JUSTICE
C. LAW AS PREDICTION |
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The connection between law and |
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justice is not a necessary one |
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As well as being a description of |
can indeed be just laws. When a law |
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what is and a prescription of what |
is just it may be said to partake of |
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should be law is also a prediction of |
natural justice. But a law may partake |
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what will happen in the real world |
of natural justice without having the |
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when a condition occurs.38 When we |
needed force to make it effective. So |
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examine the facts it is clear that law |
a just state must exhibit a tempered |
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is not in practice inevitably just. The |
union of natural law (force) and |
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laws of a tyrant are certainly bad laws |
natural justice (morality).39 There are |
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but they are none the less positive |
at least two types of unjust states: |
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laws because the tyrant |
states which are powerless and lack |
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thief |
the capacity to enforce what appear |
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when law is immoral then one is |
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justified |
in |
breaking it. |
It |
is not |
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39 See, |
Hobbes, |
Leviathan, where |
he |
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criminal to violate a law which itself |
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explains the relation between natural justice |
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is a crime. Unjust |
laws |
eventually |
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and natural law. I combine Hobbes and |
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provoke |
a |
backlash |
and |
ultimately |
Aristotle; |
Aristotle |
rightly argues that |
laws |
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are natural and positive and argues, I think |
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become unenforceable – in that |
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correctly, that the natural justice is inherent |
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sense, natural justice is self enforcing |
in the human condition. Hobbes attempts to |
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i.e. |
refine Aristotle by distinguishing further |
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between natural law and natural justice. |
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with certainty whether or when any |
However, Hobbe’s natural law is merely the |
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particular |
unjust law will |
become |
law of the jungle - the law of the strongest. |
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Hobbes natural justice is merely |
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unenforceable however we can say |
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conventional. I do not see natural justice as |
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they generally do and are more likely |
merely conventional because I don’t believe |
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to become so as time goes one. |
any state of nature ever existed: Aristotle |
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was correct that political (social) life is |
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inherent to the human condition. However, |
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38 O. W. Holmes, Justice, Supreme Judicial |
because natural justice may be temporarily |
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Court of Mass., The Path of the Law, |
ignored by positive law (an unjust state and |
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Address at the Dedication of the New Hall |
unjust laws can exist) it is useful to |
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of the Boston University School of Law |
distinguish between natural law and natural |
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(Jan. 8, 1897), in 10 Harv. L. Rev. 457, 461 |
justice. Natural law is the practical material |
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(1897) ( "The prophecies of what the courts |
realization of natural justice; natural justice |
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will do in fact, and nothing more |
is the theoretical concept which arises out of |
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pretentious, are what I mean by the law."). |
empirical observation. |
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(2008) J. JURIS 44
THE JOURNAL JURISPRUDENCE
be translated into practice: natural justice is not inevitably translated into natural law. An unjust regime could in fact enact positive laws of corrective (in)justice.
F. EX ANTE LEGISLATION AND EX POST JUDGEMENT
From a temporal perspective, legal decision making is of two kinds: ex ante, that is prior to the act being adjudicated or ex post, that is, a decision made after the act. Statute laws are almost always enacted ex ante. Judicial decisions are, as to the parties, ex post – though they may (common law) or may not (civilianist law) also have ex ante effect as to future litigants.
For example, the crime of genocide was, in terms of positive law, ex post
– there were no treaties against genocide until after World War II.45 Very few people would argue that it is substantively unjust to arrest mass murderers. Nevertheless, the statute laws against genocide were in fact laws ex post: the mass murder of
45 |
See generally, |
Sévane Garibian, |
||
« Génocide |
arménien |
et conceptualisation |
||
du |
crime |
contre |
l’humanité. |
De |
l’intervention pour cause d’humanité à l’intervention pour violation des lois de l’humanité », Revue d’Histoire de la Shoah, n°
(2008) J. JURIS 45
ENGLE ON LAW: LEX VS. IUS
Armenians by the Ottoman Empire46 was a violation of natural justice - but it was not a violation of any then existing treaties of positive law.47
One of the objectives and achievements of the bourgeois revolutions was to replace arbitrary tyrannical rule with decision based upon merit. As such, the bourgeois revolutions represented a change between one principle of distributive justice (merit reflected in birth) to another (merit reflected in action). One way in which the arbitrary character of (ossified) aristocratic rule was to be replaced was by the elimination of ex post facto laws48 That is, no crime would be made after the fact (nul crimen sine lege). Statutes could only prospectively ordain behavior. Likewise, merit rather than birth would become key by eliminating hereditary priveleges
(titles)49 and disabilities (“corruption of blood”).50
One of the features of bourgeois liberal government and of socialist governments is the specialization of the different organs of state. The role of a legislator is to establish, ex ante, rules which will prospectively bind members of society. As such the pronouncements of the legislator are general – though admittedly not as general as fundamental rights or the general principles of law. In contrast, the role of the judiciary is to make decisions ex post, relying (supposedly) upon rules promulgated by the legislator ex ante. As such the decrees of courts are highly specific and much of courts’ reasoning is dedicated to developing the linkage between the specific facts of the case before the court and the law as it is promulgated by the legislator.
G. COLLECTIVE JUDGMENTS51
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49 U.S. Const., Art. I, Sec. 9 “No title of |
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46 Ibid. |
nobility shall be granted by the United |
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47 See generally, Reservations to the |
States” |
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convention on the prevention and |
50 U.S. Const., Art. III Sec. 3 “The Congress |
|
punishment of the crime of genocide, |
shall have Power to declare the Punishment |
|
Advisory Opinion of 28 May 1951, ICJ |
of Treason, but no Attainder of Treason |
|
Reports (1951), |
shall work Corruption of Blood” – no |
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48 E.g. U.S. Const., Art I. Sec. 9 (no federal |
hereditary status as criminal. This was not so |
|
ex post facto laws), Sec. 10 (no state ex post |
in the USSR where SS officers children |
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facto laws). |
would also be considered as enemies of the |
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state and subject to particular control. |
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51 On the rise and fall and rise of collective |
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responsability see George P. Fletcher, The |
(2008) J. JURIS 46
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THE JOURNAL JURISPRUDENCE |
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dominant classes would be held |
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Another |
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achievement |
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of |
the |
liable for exploitation of historically |
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bourgeois |
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revolutions |
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was |
the |
dominated classes and forced as a |
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replacement of |
collective |
judgment |
class to pay reparations. At the same |
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by a strict principle of individual |
time |
however |
the |
socialist |
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accountability. |
Rather |
than |
being |
governments |
would |
not |
impose |
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judged based on social class, i.e. |
disabilities on the offspring of a |
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membership in the nobility, the |
criminal. |
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bourgeoisie insisted on judgment of |
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individuals |
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as |
individuals |
and |
VII. CONCLUSION |
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appropriate condemnation. Thus for |
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example |
a |
criminal’s |
descendants |
This essay has presented a structure |
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would not be judged for the crimes |
for |
decomposing |
the |
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ambiguous |
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of their ascendant. 52 Again these |
term law into determinable parts. |
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freedoms |
were |
however |
generally |
Law |
is |
a |
term |
with |
a |
several |
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negative, i.e. freedoms from the |
competing meanings. Thus the term |
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state’s interference with the life |
must |
be |
complemented |
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and |
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liberty or property of the individual. |
contextualized. Natural law, positive |
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law, law as a prescription and law as |
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The |
socialist |
revolutions |
partially |
a description coerce the otherwise |
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reverted to or advocated a return to |
ambiguous term into tractable forms. |
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collective |
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judgment |
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and |
By distinguishing between law (lex) |
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accountability.53 |
Thus, |
historically |
and justice (ius) we are able to focus |
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on |
different |
aspects |
of |
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both |
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Storrs Lectures: Liberals and Romantics at |
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command and right. Thus, unlike |
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War: The Problem of Collective Guilt, 111 |
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Yale L.J. 1499, 1539 (2002). |
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Kelsen,54 |
I see the |
fundamental |
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52 U.S. Const., Art. III Sec. 3 “The Congress |
element of law not as hierarchically |
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shall have Power to declare the Punishment |
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ordered “norms”. Instead I see |
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of Treason, but no Attainder of Treason |
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shall work Corruption of Blood” – no |
potentially |
conflicting |
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conditional |
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hereditary status as criminal. This was not so |
statements |
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with |
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contingent |
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in the |
USSR |
where SS officers children |
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would also be considered as enemies of the |
enforcement |
imperatives as |
two |
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state and subject to particular control. |
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atoms of law. However those |
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53 Beate Sibylle Pfeil, Kollektivschuld und |
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Völkerrecht. Eine Initiative aus der |
conditional |
and |
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imperative |
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Parlamentarischen |
Versammlung |
des Europarats, |
statements |
are only |
scholarly |
law - |
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Europäisches |
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Journal |
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für |
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Minderheitenfragen, EJM 1, (2008), |
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http://www.springerlink.com/content/485 |
54 Hans Kelsen, Théorie Générale du Droit |
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5501631j80704/ |
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et de l'Etat Paris: Bruylant (1997) p. 166. |
(2008) J. JURIS 47
ENGLE ON LAW: LEX VS. IUS
law in the books. They are theoretical predictions. To be considered “practical law”
The first portion of this essay raised the concept of natural law and supplied the Aristotelian and Hobbesian definitions of that term. The second portion turned its attention to the relationship between law and justice. This paper is founded on the premise that there are indeed universal moral principles: thus, there can be a natural justice; however, it also takes the view that there is nonetheless no inevitable connection between natural law and natural justice – principles of natural justice are normative, not nomothetic. In analysing both law and justice the paper has revealed how dialectical reasoning allows us to speak with reasonable exactitude
of legal science. We thus apply historical materialism55 to understand the evolution of the relation between law and justice, to illustrate distinctions between corrective and distributive justice and to explain the changing relationship between natural law and natural justice as exchanged via alterations in the conception of the correct measure of distributive justice which must inevitably touch upon aspects of corrective justice.
How can differing societies have differing rules which nonetheless reflect a universal morality? While differing societies have different standards of justice those differences are functions of their mode of production which, due to technological advances, is constantly improving. Within a given mode of production however the moral standards of society are generally accepted and are intersubjective. They reflect the moral judgment and capacity of judgment of the society depending upon the society’s state of economic development. So the standards are universal in the sense
55 |
Josef |
Stalin, |
Dialectical |
And |
Historical |
||
Materialism, |
(1938) |
From |
Josef |
Stalin, |
|||
Problems |
of |
Leninism, |
Foreign Languages |
||||
Press, |
Peking, |
(1976). |
Available at: |
http://www.marx2mao.org/Stalin/DHM38.ht ml
(2008) J. JURIS 48
THE JOURNAL JURISPRUDENCE
that we cannot condemn a poor society for its poverty when there was no alternative to that poverty. At the same time that fact implies that an economically developed society will be held to higher standards than one which is less well off. In this sense, fundamental human rights are like a ratchet, ever moving forward. Even outside of the intersubjective sense, there are universal moral standards in that some standards, such as the prohibition of unlawful killing, are timeless and universal. Further, the moral principles of a society at one phase of development tend to survive its transition as it enters into its next developmental phase. Thus the sphere of protected conduct in fact expands with increasing economic well being consequent to progress in the mode of production of society. Universal moral principles do exist – but they are not inevitably or necessarily enforced. The naturalist theories of law, like the positivists, only have half of the answer to the question “what is the relation between law and justice”. Each should reexamine the other, preferably from the perspective of historical materialism, to understand its own flaws and the contributions that the other perspective might bring.
(2008) J. JURIS 49
ENGLE ON LAW: LEX VS. IUS
(2008) J. JURIS 50
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