Rules Are an Essential Component of Every Legal System - Essay Example

RULES AND THE LEGAL SYSTEM Rules are an Essential Component of Every Legal Sytem ________ ____________ Abstract Is it possible to severe rules from any legal system The theories of legal philosophy are looked into in order to determine how they view rules and what roles do they conceive that rules play in the legal system. Some induction is applied in this regard because the theories are not always explicit with regards to rules. Rules in the form of law, legal procedure and even principles in the process of their enactment and their roles during adjudication deserve attention. RULES ARE AN ESSENTIAL COMPONENT OF EVERY LEGAL SYTEM Introduction. This work seeks to discern whether rules are necessary in a legal system or not. It will not delve unless necessary to the discussion into the kinds and types of rules present in any legal system nor distinguish between different existing legal systems. This will also ignore rules set down by extra-systems and will not come up with a definition of law. For purposes of the problem given and in order to come to a proper conclusion, the various theories of analytic jurisprudence in relation to rules are gone over. Proposition. Every legal philosopher agrees on and presumes the presence and necessity of rules in every legal system. They only bicker on the manner of their validity and normativity. Rules are inherent in the very definition of law and of legal system and are very significant in legal process. Relevant Theories. Analytic Jurisprudence views the legal system as constitutive of norms and differentiates and severes it from other non-legal systems extant in every possible society. According to Austin (1995)1, analytic jurisprudence seeks to put a handle upon "the essence or nature which is common to all laws that are properly so called." (p. 11) The existing works of analytic jurisprudence exist in a continuum which on one end stands theories of natural law and on the opposite, that of legal positivism with strains of both theories in between. More modern theories diverge from both theories forming classifications of their own. Naturalism. The Overlap Thesis of all forms of natural law theory insist on a moral foundation for all valid conception of law. Blackstone (1979)2 proffers the classical natural law thesis: This law of nature, being co-eval with mankind and dictated by God himself, is of course superior in obligation to any other. It is binding over all the globe, in all countries, and at all times: no human laws are of any validity, if contrary to this; and such of them as are valid derive all their force, and all their authority, mediately or immediately from this original. (p.41) Neo-classical natural law theory use the said thesis to provide the basis for justification of legal obligatoriness and consequent state coercion. For John Finnis (1980)3, "the principles of natural law explain the obligatory force (in the full sense of 'obligation') of positive laws, even when those laws cannot be deduced from those principles" (p.23-24) Fuller4, on the other hand, lists eight (8) principles of procedural morality requirements, all concurring, which every law should satisfy. According to him (1964), these features serve "the enterprise of subjecting human conduct to the governance of rules." (p.106) On the opposite, legal positivists proffer criteria for validity of law other than morality. Legal Positivism asserts that "it is in no sense a necessary truth that laws reproduce or satisfy certain demands of morality, though, in fact they have often done so. (Hart, p.181-2)5 Legal Positivism. For all positivists, the law is a social construct. The Conventionality thesis insists that social convention serves as the rule of recognition of the authoritativeness of a law. The Social Fact thesis require particular facts such as the presence of a sovereign or of primary and secondary rules as rules of recognition that provide legal validity. The Separability thesis denies any overlap between law and morality. Modern Theories. Middle spectrum theories adopt both in different quantities or reject any one or the other of the foregoing theses for some other reasons. Dworkin rejected the Social Facts thesis by putting forward the argument that principles should also be considered as law and that the same are not the result of social facts or put in place by some test or standards. Legal Realism do not outrightly reject rules that restrain judges but they insist that judges constantly create new law by being guided by political and moral intuitions based on the facts of each case than naturalism and positivism could care to admit. New Marxist theorists insist that the law is even more indeterminate and radically so when ideology shapes its contents. Legal economists insist on the utilitarian and autonomic use of law and the legal system to maximize wealth in society. Feminist and Critical Race theories attempt to deconstruct patriarchal and color tendencies of the law. The theories discussed don't always discuss rules but as a whole, they have rules of various kinds operating in order for their particular interpretations to apply. None attempted to outrightly reject rules. The Legal System. According to William T. Allen (1997)6, the offices of a legal system can be broadly characterized into four areas: First, the legal system provides a method to determine the authenticity or authority of statements that purport to constitute legal rules. (This follows "the rule of recognition" forwarded by H.L.A. Hart)7. This function authorizes the process of the positive creation of legal rules or codes, and establishes standards for authenticating positive legal rules of all sorts. Second, the legal system facilitates social interaction and economic production by defining rights and establishing procedures by which people can voluntarily create rights and duties and affect legal status. xxx Third, the legal system enforces legal duties through criminal and civil processes, fixing and enforcing compensation for some losses caused by violations of legal duties and prosecuting and punishing violators of criminal law. Fourth, in authoritatively announcing and enforcing legal norms, the legal system contributes to the construction of a social identity for the people who identify with it (or commit their allegiance to it), thus tending to shape their behavior non-coercively.) (p.69) The foregoing quotation views the legal system as providing an institutionalized structural framework for regulating human behavior from various vantage points and by doing so it helps put the various theories in a heirarchy of rule perspectives according to the way they are adopted and applied by the system. Legal Validity. The first function involves legal validity in the form of rule definition, creation, and adoption which in legal philosophy constitutes the unbridgeable chasm between naturalism and positivism. This chasm becomes illusionary in legal practice with the number of rights and rules derived from naturalism present in the various constitutions of the countries all over the world, even in the unwritten UK constitution and in recent human rights development and in the positivist guidelines present in enacted statutes, adopted by specific social convention such as legislature or judiciary, which necessarily separate law from morals. Normativity of law. The second and third functions involve the normativity of law in the form of legal process which by themselves involve rules in the sense of legal procedure, that set of rules governing the actual exercise of legal rights or parties and the manner in which opposing parties assert their claims and defend themselves and further comprehending procedure, evidence, counsel conduct and such factors affecting application and adjudication of legal rights as well as in the form of rights, privileges, duties, penalties, punishments and damages embodied in statutes and caselaws. These functions forward the context of relationship between legal rules and their enforcement. The fourth function embrace the first three, complementing each other, by emphasizing the social context of the system and relegating the coercive use of force as incidental only to particular enforcement of types of laws. Legal philosophers furnish conditions for legal validity which for positivists involve social facts and for naturalists, conformity to universal morality. Theories involving Legal Validity. Where Austin follows Hobbes in pointing to political sovereignty as the source of said validity, Hart pointed to social convention. Hart's social convention constitute the rules of recognition which provide the means for the creation, modification and annulment of legal standards. The first are primary rules and the other may be considered as secondary rules. Inclusive or soft legal positivists offer a two-tiered test for legal validity. They admit that social facts provide the basic conditions for validity but add that the moral content of the prevailing norms in society must also be satisfied. Exclusive positivists reject moral content as an index for such validity. Traditional natural law philosophers envision a moral filter through which law to be valid must pass. Idealist natural law theorists like Finnis have a high view of an ideal law promoting common good. In the area of adjudication, Hart's rules play significant roles guiding the judge in determining the proper decision. In case of conflict or absence, the magistrate creates new law by exercising his discretion based on the merits of the case. Dworkin argued against the idea and forwarded the presence of legal principles, in addition to rules, upon which the proper decision should be based. For him, rules may sometimes have moral values determinative of specific outcomes but principles don't and, therefore, must be weighed. From their end of the legal philosophical spectrum, legal philosophers prescribe their respective rules and procedures to ensure validity of the law as well as for negating invalid ones. Theories on Normative Jurisprudence. Through the restriction of freedom, law limits autonomy. This behavior guiding nature of the law is derived from the coercive aspect, the harm principle and its language in some form of legal moralism. These types of law comes from state legislation in the manner that a parent protects his children even from each other and in other types in the form of social self-protection against destructive deviant behavior; the first as civil law and the latter as criminal law. "The sole end for which mankind is warranted, individually or collectively, in interfering with the liberty of action of any of their number is self-protection. The only purpose for which power can rightfully be exercised over any member of a civilised community against his will is to prevent harm to others."(Mill 1906, p. 12-13)8 Early positivists saw coercion as a necessary aspect of the law. Even modern theorists adopt the view. "Legal obligation is not, or not immediately, the behavior it ought to be. Only the coercive act, functioning as a sanction, ought to be." (Kelsen 1967, p.119)9 Modern positivists viewed coercion as unnecessary for the fulfillment of law's office and saw the problem as one of language and reason. "The problem of the normativity of law is the problem of explaining the use of normative language in describing the law or legal situations." (Raz, 1990, p.170)10 On the issues of the obligation to obey law and of punishment, theories conforming to the spectrum are forwarded. In this regard, natural law moves to some form of emotional persuasion, even blackmail when it assert that positivism negates any moral obligation to obey the law qua law. Because the mere fact that a rule is law does not provide moral impetus for doing what it says, arguments on the obligation to obey law are forwarded in four types of reasons: gratitude, fair play, implied consent and general utility. These reasons are constantly used to justify statutes and enactments. Legal punishment are also justified in the forms of retribution, deterrence, prevention, rehabilitation and restitution.11 Normative rules underlie the legal system and are generally responsible for its successful contributions in society. Rules in the Legal System. Hart did not distinguish rules between legal procedure and legal principles but admitted the confusing nature of rules. The conception of rules he forwarded was condemned by Dworkin as plain fact view and as such fails because judges are given only one standard to rely on and gives them the option to resort to too much discretion. Dworkin posited that instead of free-wheeling exercise of a magistrate's discretion, principles of law apply. For him, judges sometimes base their decisions on moral principles that don't fulfill the social criteria.12 While Dworkin allows discretion on the part of judges, he points to analysis of moral and political considerations as the means to arrive at the correct decision. Kelsen also tried to present a transcendental description of source rules in the grundnorm. Fundamental norms or in the words of Hart, secondary rules, take the form of constitutional provisions, upon which any regulation or statute, which are primary rules, must conform otherwise they are considered void. They provide the structure of government and the bill of private rights. Rules are created because of their social function, a social context. They have relevance only to humans in situs within society and interacting with each other. It is the effectivity of such rules and the legal theories in actual operation that lend to their usefulness in achieving happiness as an activity13. Rules in the Linguistic Model. The language model of legal philosophy views the legal process as a series of communication. It analyzes jurisprudence according to different rules but they are nevertheless rules. It, being a method of analysis, does not set aside existing legal procedure, only set certain criteria to ensure feedback and achievement of perceived and intended goals and values. Conclusion. Every legal system is built upon the essential foundation of recognized formal and rational rules and also of principles, especially in practice. These form a heirarchy which further give rise to law, precepts and exceptions, obligations and duties, rights and privileges and powers, all of which may either forbid or compel one or another to do (or not to) an act. BIBLIOGRAPHY Allen, W.T. (1997) Commentary on the Limits of Compensation and Deterrence in Legal Remedies. 60 Law and Contemporary Problems 67. Aristotle (1962) Nicomachean Ethics 20-21 Trans. M. Oswald. Austin, J. (1995) The province of Jurisprudence Determined. Cambridge: Cambridge University Press. Blackstone, W. (1979) Commentaries on the Law of England. Chicago: The University of Chicago Press. Finnis, J. (1980) Natural Law and Natural Rights. Oxford:Clarendon Pess. Fuller, L.L. (1964) The Morality of Law. New Haven, CT: Yale University Press. Dworkin, R. (1978) Taking Rights Seriously. Cambridge:Harvard University Press. p. 40. Hart, H.L.A. (1961,1994) The Concept of Law. Oxford. Kelsen, H. (1967) Pure Theory of Law, Trans. M. Knight. Berkeley University of California. Mill, J.S. (1906) On Liberty. New York. Raz, J. (1990) Practical Reason and Norms. Oxford: Clarendon Press. Endnotes Read More