Does the Philosophy of Law Have Any Practical Value or is it Just a Mental Exercise - Essay Example

Does the Philosophy of Law have any practical value or is it just a mental exercise Is there any practical value to philosophy Or, is philosophy simply a mental exercise as applied to the law Before we further probe this question, we should establish that there is indeed a philosophy of law. Once that has been established we can analyze whether or not it is of any practical value or simply a philosophical exercise. The analysis after that establishment will use mainly contract, trust, wills, and probate law as examples of the necessity and practical value for a philosophy of law. "The term philosophy derives from a combination of the Greek words philos meaning love and sophia meaning wisdom. "What philosophy is, or should be, is itself a philosophical question that philosophers have understood and treated differently through the ages." (Wikipedia Philosophy p1). Philosophy can also be defined as a "doctrine: a belief (or system of beliefs) accepted as authoritative by some group or school; the rational investigation of questions about existence and knowledge and ethics; any personal belief about how to live or how to deal with a situation." (Princeton WordNet p1). The second of the above definitions lends itself to our thesis. 'Some group or school' could be analogous to the legal profession; 'doctrine' could be analogous to the law; 'personal belief about how to live' could be analogous to an individual's virtue, morality, and ethics; and 'deal with a situation' could be analogous to entering into a negotiable instrument such as a contract. This second definition mentions most of the issues that have given rise to a wide ranging concatenation of philosophical treatise and thought concerning the philosophy behind and used in the creation of a body of laws meant to guide the individual in their dealings both in rem and in persona. The philosophy of law could be said to trace its origins back before Plato and Aristotle established what contemporary society defines as virtue ethics (Wikipedia Philosophy of Law p1). Possibly, even though it wasn't quantified in a body of text, or even written down, philosophy, as applied to law, could date back to the first time two human beings made themselves understood to one another and came to an agreement to hunt a dinosaur, fashion a weapon, or establish an inviolate cave. Some of these social contracts could probably even fit today's UCC definition as "negotiable instruments" (Yovel 7). Whether these early contracts fit the Uniform Commercial Code (UCC) is not the question. The question is whether engaging in the philosophy of law is more than just a mental exercise. Hence we must first become familiar with what is currently thought of as the philosophy of law and then use some specific case examples to validate the premise that it has relevance and should not be disparaged. Wesley Newcomb Hohfeld's analysis originally published as two articles in the Yale Law Journal in 1913 and 1917 and are "...now a standard part of legal thinking" (Walker, Oxford Companion to Law 575) is a starting point that appears to provide a reference plane from which we begin our familiarization with the philosophy of law. Hohfeld believed that philosophically, there were co-dependent and inter-related fundamental legal concepts. In his two papers he enumerated eight entities called jural correlates and jural opposites. "Hohfeld maintains that legal analysis is frequently muddled and inconsistent because of an improper understanding of the fundamental legal conceptions. His stated goal is to catalogue and clarify these conceptions. He asserts that there are eight such entities: right (claim), privilege (liberty), power, and immunity along with their respective correlates of duty, no-right (no-claim), liability, and disability. In addition, each fundamental conception is a jural opposite to another: privilege (liberty), right (claim), power, and immunity are the respective jural opposites of duty, no-right (no-claim), liability, and disability" (O'Reilly p1). Can the philosophy of law dealing with contract theory; will theory; and the classical approach to contracts where individuals freely enter into said contracts be shown as consistent with Hohfeld's analysis of fundamental legal conceptions Is the use of his analysis of practical value when either creating a law or writing a contract Does a party to a contract have rights, privileges, power, and immunity as well as duties, no-rights, liability, and disability If there is a society of one, a body of law is not necessary. Its philosophy is egocentric. Only when an individual relates to others does the need for a body of law appear to arise. When more than one person is involved, beliefs of the individual are modified to fit the relationship of the individual to the other individuals with which he interacts. In order to accommodate individuals differing belief systems some sort of basic rules would appear to be necessary. However, the larger the society of individuals the more divergent and encompassing the set of rules governing the interaction of individuals in that amorphous belief system must be. Conversely, the larger the society of individuals the greater the accommodation and modification of a single individual's belief system. In short, a relational interaction has superseded the individual unless he decides to quit the society and leave. Anarchists, a type of political philosophy, and its proponents, still, to this day, tell us this isn't necessarily so. To date they haven't shown that it can be done. Even though as Walker stated, that Hohfeld's analysis is "...now a standard part of legal thinking", it is not without it's critics. "Andrew Halpin falls into the camp of critic, not completely rejecting the model as some do, but nevertheless rejecting Hohfeld's contention that there are eight fundamental legal conceptions." (O'Reilly p1). In addition to the number of relational entities, "Andrew Halpin contends on the one hand, Hohfeld, who proposed a system of fundamental legal conceptions and disavowed a need to attend to normative legal theory; and on the other hand, Dworkin, Nozick, and Rawls, who each approach rights from the perspective of general moral and political theory but give insignificant, inadequate, and/or inaccurate reference to structural analysis. For legal theory to advance in general, but specifically in the realm of rights analysis, Halpin argues that a coherent articulation of the two perspectives must be achieved. Rights & Law: Analysis & Theory is Halpin's attempt to stimulate that synthesis." (O'Reilly, 1). Hans Kelsen writes, "Just as natural and positive law govern the same subject-matter, and relate, therefore, to the same norm-object, namely the mutual relationships of men -- so both also have in common the universal form of this governance, namely obligation." (Kelsen, p. 34) Mutual relationships, rights, duties, and obligations; a relational paradigm. Obligation by its very definition, as stated by Princeton's wordnet.edu is "the social force that binds you to the courses of action demanded by that force of duty and be binding subject to enforcement." It uses the following quotation by John D. Rockefeller, Jr. as further illustration: "we must instill a sense of duty in our children; "every right implies a responsibility; every opportunity, an obligation; every possession, a duty - John D. Rockefeller Jr." It is interesting to note that Mr. Rockefeller, Jr. use much the same inter-relational constructs, as did Hohfeld in 1917. The same relational paradigm between the individual and his society appear to have given rise what is generally known as the three concepts of necessity as they relate to law: One: Necessarily, law deals with moral matters. "This is broader than Hart's minimum content thesis according to which there are basic rules governing violence, property, fidelity, and kinship that any legal system must encompass if it aims at the survival of social creatures like ourselves" (Hart 1994, pp. 193-200). Who defines what is, or is not, a moral matter Once we have an acceptable definition, who establishes the rules that attempt to provide a written guideline to the behavior of the group that accepted the rules in the first place Hart seems to believe that at a minimum there are basic rules that exist whether there are people or not. Since human beings make the rules and interact, Hart's assumption does not seem consistent with Hohfeld's fundamental legal concepts. Two: Necessarily, law makes moral claims on its subjects. "The law tells us what we must do, not merely what it would be virtuous or advantageous to do, and it requires us to act without regard to our individual self-interest but in the interests of other individuals, or in the public interest more generally (except when law itself permits otherwise). That is to say, law purports to obligate us. But to make categorical demands that people should act in the interests of others is to make moral demands on them." (Stanford Encyclopedia of Philosophy). Three: Necessarily, law is justice-apt. "In view of the normative function of law in creating and enforcing obligations and rights, it always makes sense to ask whether law is just, and where it is found deficient to demand reform. Legal systems are therefore the kind of thing that is apt for appraisal as just or unjust. This is a very significant feature of law. Not all human practices are justice-apt. It makes no sense to ask whether a certain (musical) fugue is just or to demand that it become so." (Stanford Encyclopedia of Philosophy). In addition to law dealing with moral matters, making moral claims, and being justice-apt as stated above, a reference has been made to the normative theories of the law. In common parlance the normative theory of law concerns itself mainly with the goal and purpose of the law. Current schools of normative thought can be segregated into three categories: Virtue ethics, also know as aretaic theory; deontology; and consequentialism sometimes referred to as utiliarianism (see Stanford Encyclopedia of Philosophy). Aretaic theory may be said to emphasize virtue or moral character by doing what is morally right to help achieve eudaimonia. (Eudaimonia is similar to a human being achieving Maslow's fifth step in his hierarchy of needs; self actualization. Princeton University Aristotle scholar John M. Cooper proposes the translation, "human flourishing"). Deontology appears to emphasize acting in accordance with the duties or rules and the well-being derived thereof. Consequentialism appears to focus on the consequences of one's actions. Utilitarianism appears to take this a bit further and not only focuses on the consequences' of one's actions but includes the well-being received from the consequences of those actions. Hopefully those actions from which the well being is received are within the bounds of legality. All of the above deal with deriving a sense of well-being and imply that that well-being will come from following a set of rules. These concepts are often used by legal philosophists to test the validity of theirs and other's theories. They all have their proponents and critics. The argument that the law and morality are irrevocably tied together is contrary to legal positivism. "Legal positivism is a school of thought in modern and contemporary jurisprudence and the philosophy of law. The principal claims of legal positivisim are: that laws are rules made by human beings; and that there is no inherent or necessary connection between law and morality" (Wikipedia/Positivism p1). This philosophy is supported by the arguments of Jeremy Bentham, H.L.A. Hart, Hans Kelsen and others. "Hart's famous essay Positivism and the Separation of Law and Morals, (1958) treat the theory as the denial that there is a necessary connection between law and morality - they must be in some sense separable even if not in fact separate" (Coleman, 1982). Ronald Dworkin in his work Law's Empire takes issue with this approach and gives rise to another school of thought; legal interpretivisim. A definition of interpretivism could be, "Law is not a set of given data, conventions or physical facts, but what lawyers aim to construct or obtain in their practice. This marks a first difference between interpretivisim and legal positivism . There is no separation between law and morality, although there are differences. Law is not immanent in nature nor do legal values and principles exist independently and outside of the legal practice itself." (Wikipedia /Interpretivism). "Dworkin is most famous for his critique of Hart's positivism, which is given its fullest statement in his book Law's Empire. Dworkin's theory is 'interpretive'. He argues, with positivists, that legal standards derive from explicit and existing legal practice and not purely from considerations of justice; a valid proposition of law must have sufficient 'institutional support'" (Wikipedia/Philosophy of Law). Dworkin uses 'considerations of justice' in his argument. He adds that this concept alone is not enough for a 'proposition' to be 'valid'. It needs 'institutional support' as well. Could we construe this to be power as Hohfeld would define it instead of 'institutional support' While not ruling out the role of 'justice', he purports that legal standards derive more from explicit and existing legal practice. This neatly addresses changing societal mores, ethics, political and economic power structures and incorporates them into the 'existing legal practice' part of his argument. It is a way to cover the evolution of society and the evolution of an individual's rights in that society. Or conversely, the dissolution of an individual's rights. According to Dworkin the philosophy of legal intreprevisim could mean, as an example, that racial discrimination, segregation, persecution of the rights of the individual and all its consequences in the 1960's 'did not exist' until landmark court cases said it did and it became part of the existing legal practice. It now had 'institutional support'. Unfortunately, violence was necessary to focus enough attention on protecting the rights of a member of a racial minority in the United States in the 1960's. But, whether we are proponents of any of the above philosohy's, one must agree that a philosophy of law was used to rectify what was called injustice. This is the opposite of justice and one of the neccessities stated that law must necessarily be justice-apt. Justice is a concept. The definitions of justice are all relational and refer mainly to some sort of retribution of the commission of an act of somekind. What is just for a New Guinea citizen may not be just for a resident of the state of Oklahoma. Then again, it may be. It all depends on the referential frame existing at that moment in time between the rest of the world and the individual. Here we are back at Hohfeld's eight entities. Writing a contract using his fundamental legal concepts attempts to set what is just within the referential frame of intent of the parties to the contract existing at the moment of signature. In a contract of this nature, an attempt is made to cover all rights, privileges, powers, immunities, and jural opposites of each party adhering to the contract. If anyone could spell out all exigencies, now and in perpetuity, at the inception of the contract, there would, no doubt, be little need for adjudication when one party or the other is sued for a breach of contract. Spoken, or written, language is an imperfect tool and is open to interpretation. Dworkin spoke of this when he talked about the legal intreprivism philosophy of law. In the United States, there is the Uniform Commercial Code (UCC); "a model statute covering things such as the sale of goods, credit, and bank transactions. All states have adopted and adapted the entire UCC, with the exception of Louisiana, which only adopted parts of it" (definition from the 'Lectric Law Library). In addition to statutes covering business transactions in the UCC, there are bodies of probate, trust, wills and estate laws as well as others. All of these are attempts to codify the rights, duties, obligations, liabilities, immunities, and recourses of parties enjoined in contract together. They are attempts to set up 'uniform' guidelines for social contracts. Does a philosophy of law find a practical use in this case Perhaps this can be illustrated by the following finding. "The Task Force noted that a legal obligation to provide goods, services, the right to use an asset(s), or some other consideration to a customer(s) would be examples of a legal performance obligation assumed by the acquiring entity. The Task Force also noted that an acquired entity might have deferred recognition of revenue because it is (or may be) obligated to grant the customer future concessions, as would be the case under a general right of return under Statement 48 or a price protection provision. The Task Force noted that the acquiring entity should recognize a liability if it has assumed a legal obligation to provide such concessions" (FASB Emerging Issues Task Force EITF Issue No. 04-11 p2). The FASB Task Force uses the words obligation, right to use, and liability in its findings. These are the very words used to describe some of the fundamental legal concepts as envisioned by Wesley Hohfeld in his Yale Law Journal papers of 1913 and 1917. The Fair Accounting Standards Board (FASB), trying to set 'fair' standards for business accounting is using a philosophy of the law championed by Wesley Hohfeld in the early 1900's. But, is this the same as with a social contract One would honor a social contract, such as a contract for goods or services for one of two reasons. They would abide by the contract simply because they have agreed to it or that it is reasonable to do so. "The idea of the social contract goes back, in a recognizably modern form, to Thomas Hobbes, but is most notably embodied, in our times, in the work of John Rawls. The basic idea is a simple one. What makes some particular system of collectively enforced social arrangements legitimate is that it is the object of an agreement for the people who are subject to it" (D'Agostino p1). Contract theorists are not as concerned with the morality of the law and it being justice-apt, or its social context. "In its modern guises, contract approaches are not intended as accounts of the historical origins of current social arrangements, but, instead, as answers to, or frameworks for answering, questions about legitimacy and political obligation. Important issues associated with the social contract include the binding force of hypothetical agreements, the reduction (or not) of ethico-political to instrumental reasoning, and the compatibility of contract reasoning with fairness and liberty." (D'Agostino p1). The question as to what constitutes legitimacy and political obligation can be stated in the relationship of fundamental legal concepts where considerations of jural opposites between right and no-right, privilege and duty, power and disability, and immunity and liability. Legitimacy is established through the privilege - no-right relationship as well as the right - duty relationship. Political obligation through power - liability and immunity - disability relationships follow. The hypothetical agreement thus uses the philosophy of Wesley Hohfeld's fundamental legal concepts to delineate the right, privilege, power, and immunity of the individual as well as the jural opposites of no-right, duty, disability, and liability. For example, it may include a 'hold harmless' clause, or indemnify the individual. A power - liability relationship. In the case of a royalty agreement, the agreement will specify the extent, time, amount, constraints, as well as other specific privileges, rights and power of the grantor. It will also specify the opposites for the grantee. And vice-versa. In a case such as this the moral issues are solely those of the individuals that are party to the contract and are usually not the main consideration. Rather, whether both parties to the contract are getting what they want, or are willing to agree to, which is not necessarily the same thing, are the important issues. Although an overall morality is not the issue, a concept of what is just must be agreed to by the all parties to the contract and a philosophy of law such as Hohfeld set forth provides the cogent basis for a such a solid contractual foundation. As John Rawls said (1999, p.514): "Finally, we may remind ourselves that the hypothetical nature of the original position invites the question: why should we take any interest in it, moral or otherwise. Recall the answer: the conditions embodied in the description of this situation are ones that we do in fact accept." Since a social contract is a contract between two social entities be they individuals or corporations, each has its own agenda, wants, needs, rewards, and satisfactions. These may or may not be morally sound but that is not an issue since both parties, or multiple parties, to the agreement are willing to give up some of their considerations to reach mutual agreement. Yielding up of these considerations only establishes that liberty and fairness may need to be traded off against one another in uncongenial ways. Of course, whether it is uncongenial depends on whether you are the one yielding up that liberty. Whether or not morality is the consideration, a philosophy still exists and is used when framing contracts and helps with defining the intent of the contract. Philosophy of what is good and not-good in a relational paradigm between the parties of the contract. Philosophy of what are the duties, liabilities, power, rights, and privileges of the contractual parties with respect to one another and their opposites. Contract theorists David Gauthier and James Buchanan, "think that legitimacy of regimes is determined by their prudential acceptability from the diverse points of view that are represented in relevant communities. On this account, the basis for an individual's agreement, and hence for h/er judgment that the regime is a legitimate one is that enforcement of the regime's demands contributes to the realization of h/er aspirations. On this account, to say "S is legitimate" is to say, more or less, that S is good for its various members" (D'Agostino p1). The philosophy of the contract in this case 'is good for its members'. Good is a personal philosophical concept. What's good for one may not be good for another. What's just for one may not be just for another. Still, an overall philosophy and inter-relationship of exactly what is acceptable as just must exist and be used. The language of the law, what it covers, why it needs to exist, its interpretation, when it is used, and how it is enforced have become intimately tied to our everyday life. People are familiar with the practice of law; most vaguely understand how laws are created. But, ask one of them about the philosophy of law. Many would say it is, as most philosophical discussions are generally described, a mental exercise and has no practical value when it comes to the law. These same people would probably say, "The law tells us what we can and can't do." While epistemologically correct it begs the question of legitimacy and political obligation. Who really tells us what we can and can't do Isn't that a philosophical discussion in and of itself Whether one uses the philosophy of legal positivism, legal interpretivisim, legal realism, contract theory, or another as yet to be defined as to what exactly is, or should be the philosophy of law, and whether the law is simply a set of rules made by human beings, or a set of rules shaped by the evolution of social processes making moral claims and dealing with moral matters or not, there is an underlying philosophy of law that is very relevant to the creation of each law and contract. The common misconception that philosophy of law has no practical value would appear to be just that, a misconception. We have established that philosophy of law does exist in a variety of forms and definitions. Perhaps this is as it should be. Why should the law be any different than any other aspect of the human condition Humans after all are the ones that have drawn up our laws. Schools of philosophic thought on every aspect of life have been argued for and against since the dawn of time. From Plato and Aristotle with virtue ethics to Wesley Hohfeld and his fundamental legal concepts to Ronald Dworkin's legal interpretivism to John Rawls' contract theory, they all pave the way for providing a framework within which the rights of the individual can be enumerated and protected. The philosophy of law provides for an ideal to be reached by lawmakers, trial lawyers, judges and everyone else associated with the legal profession. It develops the framework within which valid contracts are written and agreed. However, in most discussions, we seem to forget one ingredient, ourselves. Whether we give tacit agreement by not taking issue, or are instrumental in identifying and righting an injustice, enter into a contractual agreement, set up a trust for our children, or write our will, we are applying the philosophy of law. Practically. Everyday. We are establishing what is acceptable to us in terms of right, privilege, power, and immunity and what we are willing to live with in terms of giving up some of those rights, privileges, powers and immunities to other individuals and society at large. Works Cited Coleman, Jules (1982) Negative and Positive Positivism, 11 Journal of Legal Studies 139. D'Agostino, Fred. Contemporary Issues to the Social Contract, plato.stanford.edu/entries/contractarianism-contemporary (2003) Hart, H.L.. The Concept of Law, 2nd ed. ed.P. Bulloch and J. Raz . A (1994, first edition 1961) Kelsen, Hans (1928) The Idea of Natural Law, in his Essays in Legal and Moral Philosophy (1973) ed. O. Weinberger, trans. P. Heath .Dordrecht: Reidel O'Reilly, Daniel T. Are there any fundamental legal conceptions Published in University of Toronto Law Journal volume XLVIII, Number 4, Fall 1998. Rawls, John, A Theory of Justice, Harvard University Press, 1999 [1971]. Walker, Oxford Companion to Law 575, The Oxford Companion to American Law (2002) Yovel, Jonathan. If It Looks Like a Duck and It Quacks Like a Duck, It's a Check: Two Forms of Formalism in the Law of Negotiable Instruments, University of Haifa, Israel (2004) EITF Issue No. 04-11 FASB Emerging Issues Task Force, Issue No. 04-11, Accounting in a Business Combination for Deferred Postcontract Customer Support Revenue of a Software Vendor, Document: Issue Summary No. 1 (2004) En.wikipedia.org/wiki/philosophy En.wikipedia.org/wiki/positivism En.wikipedia.org/wiki/interpretivisim Wordnet.preceton.edu/perl/webwn plato.stanford.edu/entries/legal-positivism plato.stanford.edu/entries/legal-interpretivisim Lectric Law Library, lectlaw.com/def2/u004.htm Read More