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Cagayan State University

COLLEGE OF ARTS & SCIENCES
Department of Social Sciences
Political Science Program

NOTES & WORKBOOK

IN INTRODUCTION TO
LAW & LEGAL
HISTORY
Archimedes Carag Articulo
AB Philosophy, cum laude, University of the Philippines, Diliman
MA in Philosophy, University of the Philippines, Diliman
Bachelor of Laws and Letters (LL.B.), University of Cagayan Valley
Master in Business Administration (MBA), University of Cagayan Valley
Doctor in Legal and Public Administration, Cagayan State University

Copyright 2017
No parts of this material may be reproduced without the express
approval of the Author. Exclusively for use of CSU. Not For Sale.

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SECTION 1
The Nature of Law
A. INTRODUCTION
1. Lawyers are typically interested in the question: What is the law on a particular issue?
This is always a local question and answers to it are bound to differ according to the
specific jurisdiction in which they are asked;
2. In contrast, the philosophy of law is interested in the general question: What is Law? This
general question about the nature of law presupposes that law is a unique social-political
phenomenon, with more or less universal characteristics that can be discerned through
philosophical analysis.
3. General jurisprudence, as this philosophical inquiry about the nature of law is called, is
meant to be universal. It assumes that law possesses certain features, and it possesses
them by its very nature, or essence, as law, whenever and wherever it happens to exist.
However, even if there are such universal characteristics of law, the reasons for a
philosophical interest in elucidating them remain to be explained. First, there is the sheer
intellectual interest in understanding such a complex social phenomenon which is, after
all, one of the most intricate aspects of human culture.
4. Law, however, is also a normative social practice: it purports to guide human behavior,
giving rise to reasons for action. An attempt to explain this normative, reason-giving
aspect of law is one of the main challenges of general jurisprudence.
5. These two sources of interest in the nature of law are closely linked. Law is not the only
normative domain in our culture; morality, religion, social conventions, etiquette, and so
on, also guide human conduct in many ways which are similar to law. Therefore, part of
what is involved in the understanding of the nature of law consists in an explanation of
how law differs from these similar normative domains, how it interacts with them, and
whether its intelligibility depends on such other normative orders, like morality or social
conventions.
6. Contemporary legal theories define these two main interests in the nature of law in the
following terms.
6.1. First, we need to understand the general conditions which would render any putative
norm legally valid. Is it, for example, just a matter of the source of the norm, such as
its enactment by a particular political institution, or is it also a matter of the norm's
content? This is the general question about the conditions of legal validity (Source
versus content);
6.2. Second, there is the interest in the normative aspect of law. This philosophical
interest is twofold: A complete philosophical account of the normativity of law
comprises both an explanatory and a normative-justificatory task. The explanatory
task consists of an attempt to explain how legal norms can give rise to reasons for

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action, and what kinds of reasons are involved. The task of justification concerns the
elucidation of the reasons people ought to have for acknowledging law's normative
aspect. In other words, it is the attempt to explain the moral legitimacy of law. A
theory about the nature of law, as opposed to critical theories of law, concentrates on
the first of these two questions. It purports to explain what the normativity of law
actually consists in.
7. Thus, elucidating the conditions of legal validity and explaining the normativity of law
form the two main subjects of any general theory about the nature of law:
7.1. In the course of the last few centuries, two main rival philosophical traditions have
emerged, providing different answers to these questions. The older one, dating back
to late mediaeval Christian scholarship, is called the natural law tradition. Since the
early 19th century, Natural Law theories have been fiercely challenged by the legal
positivism tradition promulgated by such scholars as Jeremy Bentham and John
Austin. The philosophical origins of Legal Positivism are much earlier, though,
probably in the political philosophy of Thomas Hobbes;
7.2. The main controversy between these two traditions concerns the conditions of legal
validity. Basically, Legal Positivism asserts, and Natural Law denies, that the
conditions of legal validity are purely a matter of social facts. In contrast to
Positivism, Natural Law claims that the conditions of legal validity are not exhausted
by social facts; the moral content of the putative norms also bears on their legal
validity. As the famous dictum of Saint Augustine has it: lex iniusta non est lex
(unjust law is not law).

B. EVALUATIVE CONSIDERATIONS AND THE NATURE OF LAW

8. If you cannot tell what counts as a vehicle without evaluative reasoning, then
you cannot tell what law the Road Traffic Act makes merely by pointing out
physical facts (such as that there were wheels on the chicken coop) and social
facts (such as that Parliament used the word vehicle in the Act). You cannot
identify the law (that is, you cannot tell what legal rights and duties people have)
without evaluative reasoning. That conclusion, if it is sound, seems to have
important implications for the long-running debates in theory of law over the
relation between fact and value in law, and over relations between law and
morality.
9. The conclusion seems to contradict one of the most provocative and controversial
claims in the theory of law--the sources thesis, which Joseph Raz has stated as
follows:
All law is source-based. A law is source-based if its existence and content
can be identified by reference to social facts alone, without resort to any
evaluative argument. (Raz (1994) at 194-5; see entry On the Nature of
Law)
10. We can only decide whether the chicken coop was a vehicle for the purpose of
the Road Traffic Act by understanding the Act as pursuing a value, and by

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making an evaluative judgment as to whether the word vehicle can be
interpreted as applying to the chicken coop with due respect for the requirement
of certainty in criminal liability. So we cannot identify the content of the law
without resort to evaluative reasoning;
11. One way to rescue the sources thesis would be by saying that judges need to make
such evaluative judgments only in borderline cases for the application of legal
languageand that they have discretion (that is, the law provides no standard that
determines the matter) in those cases. But a clear case of a vehicle counts as a
vehicle for the purpose of the Road Traffic Act just because the evaluative
considerations that justify the use of the word vehicle in that context clearly
support its application. The sources thesis seems to be contradicted even in the
clearest cases of the application of a law stated in descriptive language. The
content of such laws can only be identified on the basis of an evaluative judgment
as to how the purposes of the law ought to be conceived. That form of evaluation,
you may say, can only be carried out by engaging in the very same form of
reasoning that, in Raz's theory, law excludes;
12. It is certainly true that, in order to decide what the sources have directed (and
thereby, in Raz's terms, to identify the existence and content of a law), you need
to understand the sense in which a word like vehicle is used. But the existence
and content of the offence can still be identified without first judging whether it
ought to be an offence to do what Mr.Burr did, or whether there ought to be any
offence at all of driving without pneumatic tires. The sources thesis articulates
this important insight: in English law, there was no offence of driving without
pneumatic tires, until Parliament acted to create it. Parliament might not have
done so;
13. Moreover, if the institutions of the law had not been prepared to treat the chicken
coop as a vehicle, then because of that social fact, it would have been false (after a
decision with precedential effect) to say that it was an offence to pull a chicken
coop on iron wheels on the road. Because law is systematic (in the respect that the
law gives legal institutions authority to identify the law), the courts' decisions
determine legal rights and obligations;
14. Raz's explanation of the nature of law is not undermined by the fact that
evaluative judgments are necessary in order to identify the content of the law, as
long as it is still possible for legal directives to have the exclusionary force that, in
his theory of authority, they claim. The sources thesis is not undermined as long
as the court in Garner v Burr can decide whether it is an offence to pull a chicken
coop on wheels without pneumatic tires, without answering the question, should
it be an offence to use a vehicle without pneumatic tires? And indeed the court
can do so. But it needs to ask the related question: what is the relevant sense of
"vehicle" for the purposes of this Act? It is what Parliament did that determines
Lawrence Burr's liability; it may take evaluative reasoning to answer the question
of social fact, what did Parliament prohibit?

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C. THE EXISTENCE AND SOURCES OF LAW

15. Every human society has some form of social order, some way of marking and
encouraging approved behavior, deterring disapproved behavior, and resolving
disputes.
16. What then is distinctive of societies with legal systems and, within those societies,
of their law? Before exploring some positivist answers, it bears emphasizing that
these are not the only questions worth asking. While an understanding of the
nature of law requires an account of what makes law distinctive, it also requires
an understanding of what it has in common with other forms of social control.
Some Marxists are positivists about the nature of law while insisting that its
distinguishing characteristics matter less than its role in replicating and facilitating
other forms of domination.
17. They think that the specific nature of law casts little light on their primary
concerns. But one can hardly know that in advance; it depends on what the nature
of law actually is;
18. According to Bentham and Austin, law is a phenomenon of large societies with a
sovereign: a determinate person or group who have supreme and absolute de facto
power -- they are obeyed by all or most others but do not themselves similarly
obey anyone else.
18.1.

The laws in that society are a subset of the sovereign's commands: general
orders that apply to classes of actions and people and that are backed up
by threat of force or sanction. This imperatival theory is positivist, for it
identifies the existence of legal systems with patterns of command and
obedience that can be ascertained without considering whether the
sovereign has a moral right to rule or whether his commands are
meritorious.

18.2.

It has two other distinctive features.

a) The theory is monistic: it represents all laws as having a single form,
imposing obligations on their subjects, though not on the sovereign
himself. The imperativalist acknowledges that ultimate legislative
power may be self-limiting, or limited externally by what public
opinion will tolerate, and also that legal systems contain provisions
that are not imperatives (for example, permissions, definitions, and so
on). But they regard these as part of the non-legal material that is
necessary for, and part of, every legal system. (Austin is a bit more
liberal on this point).

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b) The theory is also reductivist, for it maintains that the normative
language used in describing and stating the law -- talk of authority,
rights, obligations, and so on -- can all be analyzed without remainder
in non-normative terms, ultimately as concatenations of statements
about power and obedience.
19. Imperatival theories are now without influence in legal philosophy. What survives
of their outlook is the idea that legal theory must ultimately be rooted in some
account of the political system, an insight that came to be shared by all major
positivists. Their particular conception of a society under a sovereign commander,
however, is friendless. It is clear that in complex societies there may be no one
who has all the attributes of sovereignty, for ultimate authority may be divided
among organs and may itself be limited by law.
20. Moreover, even when sovereignty is not being used in its legal sense it is
nonetheless a normative concept.
20.1. A legislator is one who has authority to make laws, and not merely
someone with great social power and it is doubtful that habits of
obedience is a candidate reduction for explaining authority. Obedience is a
normative concept. To distinguish it from coincidental compliance we need
something like the idea of subjects being oriented to, or guided by, the
commands. Explicating this will carry us far from the power-based notions
with which classical positivism hoped to work.
20.2. The imperativalists' account of obligation is also subject to decisive
objections (Hart, 1994, pp. 26-78; and Hacker). Treating all laws as
commands conceals important differences in their social functions, in the
ways they operate in practical reasoning, and in the sort of justifications to
which they are liable. For instance, laws conferring the power to marry
command nothing; they do not obligate people to marry, or even to marry
according to the prescribed formalities. Nor is reductivism any more
plausible here: we speak of legal obligations when there is no probability of
sanctions being applied and when there is no provision for sanctions (as in
the duty of the highest courts to apply the law).
20.3. Moreover, we take the existence of legal obligations to be a reason for
imposing sanctions, not merely a consequence of it.
21. Hans Kelsen retains the imperativalists' monism but abandons their reductivism.
On his view, law is characterized by a basic form and basic norm.
21.1. The form of every law is that of a conditional order, directed at the courts,
to apply sanctions if a certain behavior (the delict) is performed. On this
view, law is an indirect system of guidance: it does not tell subjects what
to do; it tells officials what to do to its subjects under certain conditions.
Thus, what we ordinarily regard as the legal duty not to steal is for Kelsen
merely a logical correlate of the primary norm which stipulates a sanction
for stealing (1945, p. 61). The objections to imperatival monism apply also

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to this more sophisticated version: the reduction misses important facts,
such as the point of having a prohibition on theft. (The courts are not
indifferent between, on the one hand, people not stealing and, on the other,
stealing and suffering the sanctions.) But in one respect the conditional
sanction theory is in worse shape than is imperativalism, for it has no
principled way to fix on the delict as the duty-defining condition of the
sanction -- that is but one of a large number of relevant antecedent
conditions, including the legal capacity of the offender, the jurisdiction of
the judge, the constitutionality of the offense, and so forth. Which among
all these is the content of a legal duty?
21.2.

Kelsen's most important contribution lies in his attack on reductivism and

his doctrine of the basic norm. He maintains that law is normative and
must understood as such. Might does not make right -- not even legal right
-- so the philosophy of law must explain the fact that law is taken to
impose obligations on its subjects. Moreover, law is a normative system:
Law is not, as it is sometimes said, a rule. It is a set of rules having the
kind of unity we understand by a system (1945, p. 3).
a) For the imperativalists, the unity of a legal system consists in the fact
that all its laws are commanded by one sovereign. For Kelsen, it
consists in the fact that they are all links in one chain of authority. For
example, a by-law is legally valid because it is created by a
corporation lawfully exercising the powers conferred on it by the
legislature, which confers those powers in a manner provided by the
constitution, which was itself created in a way provided by an earlier
constitution.
b) But what about the very first constitution, historically speaking? Its
authority, says Kelsen, is presupposed. The condition for
interpreting any legal norm as binding is that the first constitution is
validated by the following basic norm: the original constitution is
to be obeyed.
c) Now, the basic norm cannot be a legal norm -- we cannot fully explain
the bindingness of law by reference to more law. Nor can it be a social
fact, for Kelsen maintains that the reason for the validity of a norm
must always be another norm -- no ought from is. It follows, then, that
a legal system must consist of norms all the way down. It bottoms in a
hypothetical, transcendental norm that is the condition of the
intelligibility of any (and all) other norms as binding.
d) To presuppose this basic norm is not to endorse it as good or just -presupposition is a cognitive stance only -- but it is, Kelsen thinks, the
necessary precondition for a non-reductivist account of law as a
normative system.
e) There are many difficulties with this, not least of which is the fact that
if we are willing to tolerate the basic norm as a solution it is not clear
why we thought there was a problem in the first place. One cannot say

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both that the basic norm is the norm presupposing which validates all
inferior norms and also that an inferior norm is part of the legal system
only if it is connected by a chain of validity to the basic norm. We
need a way into the circle.
f) Moreover, it draws the boundaries of legal systems incorrectly. The
Canadian Constitution of 1982 was lawfully created by an Act of the
U.K. Parliament, and on that basis Canadian law and English law
should be parts of a single legal system, rooted in one basic norm:
The (first) U.K. constitution is to be obeyed. Yet no English law is
binding in Canada, and a purported repeal of the Constitution Act by
the U.K. would be without legal effect in Canada.
22. If law cannot ultimately be grounded in force, or in law, or in a presupposed
norm, on what does its authority rest? The most influential solution is now H.L.A.
Hart's.
22.1. His solution resembles Kelsen's in its emphasis on the normative
foundations of legal systems, but Hart rejects Kelsen's transcendentalist,
Kantian view of authority in favor of an empirical, Weberian one. For Hart,
the authority of law is social.
22.2. The ultimate criterion of validity in a legal system is neither a legal norm
nor a presupposed norm, but a social rule that exists only because it is
actually practiced.
22.3. Law ultimately rests on custom: customs about who shall have the
authority to decide disputes, what they shall treat as binding reasons for
decision, i.e. as sources of law, and how customs may be changed.
22.4. Of these three secondary rules, as Hart calls them, the sourcedetermining rule of recognition is most important, for it specifies the
ultimate criteria of validity in the legal system.
22.5. It exists only because it is practiced by officials, and it is not only the
recognition rule (or rules) that best explains their practice, it is rule to
which they actually appeal in arguments about what standards they are
bound to apply. Hart's account is therefore conventionalist: ultimate legal
rules are social norms, although they are neither the product of express
agreement.
22.6. Thus for Hart too the legal system is norms all the way down, but at its root
is a social norm that has the kind of normative force that customs have. It is
a regularity of behavior towards which officials take the internal point of
view: they use it as a standard for guiding and evaluating their own and
others' behavior, and this use is displayed in their conduct and speech,
including the resort to various forms of social pressure to support the rule
and the ready application of normative terms such as duty and
obligation when invoking it.
23. It is an important feature of Hart's account that the rule of recognition is an
official custom, and not a standard necessarily shared by the broader community.

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23.1. If the imperativalists' picture of the political system was pyramidal power,
Hart's is more like Weber's rational bureaucracy. Law is normally a
technical enterprise, characterized by a division of labor. Ordinary subjects'
contribution to the existence of law may therefore amount to no more than
passive compliance.
23.2. Thus, Hart's necessary and sufficient conditions for the existence of a legal
system are that those rules of behavior which are valid according to the
system's ultimate criteria of validity must be generally obeyed, and ... its
rules of recognition specifying the criteria of legal validity and its rules of
change and adjudication must be effectively accepted as common public
standards of official behavior by its officials.
23.3. And this division of labour is not a normatively neutral fact about law; it is
politically charged, for it sets up the possibility of law becoming remote
from the life of a society, a hazard to which Hart is acutely alert.
24. Although Hart introduces the rule of recognition through a speculative
anthropology of how it might emerge in response to certain deficiencies in a
customary social order, he is not committed to the view that law is a cultural
achievement.
24.1. To the contrary, the idea that legal order is always a good thing, and that
societies without it are deficient, is a familiar element of many antipositivist views. The objection embraces the error it seeks to avoid. It
imperialistically assumes that it is always a bad thing to lack law, and then
makes a dazzling inference from ought to is: if it is good to have law, then
each society must have it, and the concept of law must be adjusted to show
that it does. If one thinks that law is a many splendored thing, one will be
tempted by a very wide concept of law, for it would seem improper to
charge others with missing out. Positivism simply releases the harness.
Law is a distinctive form of political order, not a moral achievement, and
whether it is necessary or even useful depends entirely on its content and
context. Societies without law may be perfectly adapted to their
environments, missing nothing;
25. A positivist account of the existence and content of law, along any of the above
lines, offers a theory of the validity of law in one of the two main senses of that
term. Kelsen says that validity is the specific mode of existence of a norm.
25.1. An invalid marriage is not a special kind of marriage having the property
of invalidity; it is not a marriage at all. In this sense a valid law is one that
is systemically valid in the jurisdiction - it is part of the legal system.
25.2. This is the question that positivists answer by reference to social sources.
It is distinct from the idea of validity as moral propriety, i.e. a sound
justification for respecting the norm. For the positivist, this depends on its
merits.
25.3. One indication that these senses differ is that one may know that a society
has a legal system, and know what its laws are, without having any idea
whether they are morally justified. For example, one may know that the

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law of ancient Athens included the punishment of ostracism without
knowing whether it was justified, because one does not know enough
about its effects, about the social context, and so forth.
26. No legal positivist argues that the systemic validity of law establishes its moral
validity, i.e. that it should be obeyed by subjects or applied by judges. Even
Hobbes, to whom this view is sometimes ascribed, required that law actually be
able to keep the peace, failing which we owe it nothing.
27. Bentham and Austin, as utilitarians, hold that such questions always turn on the
consequences and both acknowledge that disobedience is therefore sometimes
fully justified.
28. Kelsen insists that The science of law does not prescribe that one ought to obey
the commands of the creator of the constitution (1967, p. 204). Hart thinks that
there is only a prima facie duty to obey, grounded in and thus limited by fairness - so there is no obligation to unfair or pointless laws (Hart 1955).
29. Raz goes further still, arguing that there isn't even a prima facie duty to obey the
law, not even in a just state (Raz 1979, pp. 233-49). The peculiar accusation that
positivists believe the law is always to be obeyed is without foundation. Hart's
own view is that an overweening deference to law consorts more easily with
theories that imbue it with moral ideals, permitting an enormous overvaluation of
the importance of the bare fact that a rule may be said to be a valid rule of law, as
if this, once declared, was conclusive of the final moral question: Ought this law
to be obeyed? (Hart 1958, p. 75)

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Worksheet No. 1
Introduction to Law and Legal History

Name: ______________________________________________

Answer the following questions clearly, with reasons, and comprehensively:

1. Do you think it is possible for communities to exist without laws? (5 points)
2. What is the difference between a lawyer and a Philosopher of Law? Based on
your reading of this Section, do you agree with the proposition that Lawyers
should be Philosophers of Law? (10 points)
3. Discuss H.L.A. Harts solution to the problem that if law cannot ultimately be
grounded in force, or in law, or in a presupposed norm, on what does its authority
rest? (5 points)
4. Hart thinks that there is only a prima facie duty to obey, grounded in and thus
limited by fairness -- so there is no obligation to unfair or pointless laws. Do you
agree? Provide illustrative cases based on your experience. (5 points)
5. Why do you think that the study of law is important for your course? Illustrate.