Legal Reasoning, Legal Theory and Rights

Martin P. Golding

• Publisher: Routledge
• Year: 2017
• ISBN:
  9781351560528
• Edition: 1
• Topic: Historia
• Subtopic: Historia del mundo

This book is a selection of articles and chapters published over Martin Golding's academic career. Golding's approach to the philosophy of law is that it contains conceptual and normative issues and in this volume logical issues in legal reasoning are examined, and various theories of law are critically discussed. Normative questions are dealt with regarding the rule of law and criminal law defenses, and the concept of rights and the terminology of rights are analyzed. Much of Golding's work is critical-historical as well as constructive. This volume will prove an informative and useful collection for scholars and students of the philosophy of law.

[1]
My Philosophy of Law

1. An Approach to Legal Philosophy

My approach to the philosophy of law is similar to that of most American (U.S.) philosophers. The philosophy of law, like many other branches of philosophy, is comprised of two sorts of issues, conceptual (analysis of legal concepts) and normative (matters of values and ideals). And Re most American legal philosophers, as I believe the case to be, I have not been concerned with whether, and how, the philosophy of law should be distinguished from jurisprudence, legal theory, and legal dogmatics (a term that is virtually unknown among American writers), which is a problem that Continental thinkers are so worried about. I have been, and I believe most American legal philosophers have been, governed more by the interest of a topic than by such systemic considerations. American legal philosophy, at least, may therefore seem somewhat parochial, driven, as it often is, by questions deriving from U.S. constitutional law and the common law.

The reason why the above mentioned distinctions are not stressed in American legal thought is, I suspect, that the notion that law is a “science” or that legal analysis or theory is a “science” is rarely to be found among American writers. This does not mean that the concerns of Continental theoreticians never occur. Legal scholars, when they try to systematise a branch of the law and when they do doctrinal study, might be doing legal dogmatics without knowing it.

So the question of the epistemological status of their statements does arise: are they empirical statements about the law, or are they some other sort of statement? As far back as the non-judicial writings of Justice Oliver Wendell Holmes in the 1880s and 90s, we find the idea that statements of law are generalised predictions of the decisions of courts. In its most plausible interpretation, Holmes seems to be talking about what lawyers are doing when they respond to their clients’ questions on the matters of law of interest to them. As far as systematic statements of the law are concerned, the cases are different.

No one would doubt that the American Law Institute’s Model Penal Code is a set of proposals about the criminal law, and not a set of predictions. On the other hand, the Institutes older Restatements of the Law (of Torts, Contracts) do sometimes appear to be statements about what the law really is, and if so, they are normative propositions of a particular sort. But few writers seem to have worried about the status of such propositions in the way that someone like the Danish theorist Alf Ross might have been¹.

To be sure, there have been scholars who have stressed the need for empirical research about the law, particularly the legal realists of the 1920s and 30s and many others. No one, I think, denies that such research could be important and useful in many ways, especially when it bears on proposals for legal reform. And the conclusions of such research do enter into philosophical discussions (e.g., discussions of capital punishment and prohibitions on the use of drugs). Yet, legal philosophers have no difficulty in distinguishing between the empirical elements, on the one side, and the analytical and normative issues, on the other.

Now, the above account may suggest that American legal philosophy is a kind of “particular jurisprudence”, as John Austin might have called it. For the topics are sometimes local in nature, or generated by local interests. However, the characterisation as particular would be inaccurate. American legal philosophers have been interested in the criteria of validity in American law, which is not an easy question. And from that question it is a quick step to more general problems about the nature of legal validity. It is true that practicing lawyers hardly take notice of these general problems, but American legal philosophers are as occupied with them as their Continental counterparts.

Sometimes conceptual and normative issues come together, though in too many ways to detail here. Normative issues obviously invoke controversy, but so can the conceptual. Conceptual analysis aims at clarifying ideas, formulating them in perspicuous terms: “What can X reasonably mean?”, is asked. There are, then, criteria of adequacy that have to be satisfied for a given analysis to be acceptable. Legal philosophers might disagree over what these criteria are, in any given case. In effect, they would be disagreeing over how a concept should be “rationally reconstructed”, and normative considerations may enter into the controversy.

Perhaps the foremost topic in conceptual analysis is the concept of law, itself. What does it mean to say that a legal system exists in a society? Legal theorists are divided on this question. The basic point in contention is whether the conditions for the existence of a legal system can be specified entirely in morally neutral terms². Legal positivists maintain that it can, while philosophers associated with the natural law tradition maintain that it cannot.

I lean toward the second position. In my opinion the answer to the question, “what does it mean to say that a legal system exists in a society?” involves a normative element, namely, the ideal of the rule of law. More about this later, however. Before I go into this subject and other matters that have occupied me, I want to give some background on how my views have developed over the years, beginning with a bit of autobiography. After doing that, I shall organise my exposition in terms of a very few writers (e.g., Holmes) with whose views I might have differences or agreements, in order to make it accessible. In so doing, I am aware that I am putting aside many important legal theorists and important topics.

2. The Development of My Thought

I began teaching the philosophy of law in the late 1950s at Columbia University. At the time, my courses focused on theories of the nature of law: legal positivism (principally John Austin and Hans Kelsen), natural law (principally Aquinas), and American legal realism. I cannot say that I then had a position of my own, and my courses largely were critical examinations of the various writers I assigned. I was somewhat opposed to natural law theory because I was suspicious of the idea of natural rights which, I wrongly thought, seemed to be entailed in a natural law theory³.

It is probably strange for an American to be suspicious of natural rights, because they are part of our founding tradition, but this skepticism (though now mitigated) has always remained with me. I found legal positivism to be attractive: as a matter of general theory, its separation (or more accurately its distinction) of law and morality seemed right. Yet I found Austin and Kelsen to be too full of difficulties to swallow positivism whole. On the other hand, Kelsen had convinced me that legal realism was the wrong approach.

At that time, then, my thinking was unsettled and naive, and I needed different versions of positivism and natural law if I was to achieve any clarity. These came when I encountered the work of H. L. A. Hare⁴ and (later) Lon L. Fuller⁵. Hart supplied a better version of positivism than either Austin and Kelsen, and Fuller supplied the procedural, rule of law emphasis that was missing in Hart. Over the years, I also began to achieve a greater appreciation both for the thought of St. Thomas Aquinas and the insights of American legal realism.

Because all of these influences are so varied and at times incompatible with each other, my philosophy of law remained (and still remains, though less so) somewhat unsettled, but I hope not naive. All of these sources (legal positivism, natural law, and legal realism) have influenced my thinking on two fundamental topics in legal philosophy, the normativity of law and legal reasoning. But there were other influences of significance.

Here I should interpose a few words on my philosophical education. As an undergraduate, my training was largely in the British analytical tradition (G. E. Moore, Bertrand Russell, and – still my favorite – C. D. Broad) and logical positivism (Rudolph Carnap and Hans Reichenbach, who was one of my teachers, and who preferred to be called a logical empiricist)⁶. I still maintain a great respect for all of these men, but I never swallowed logical positivism (not to be confused with legal positivism) whole, either. This was partly due to my study of the history of philosophy, in which I read many then out-of-fashion writers, e.g., mediaeval thinkers and the British idealists.

I also studied American pragmatism (C. S. Peirce, G. H. Mead, and John Dewey), my knowledge of which was deepened as a graduate student. Toward the end of my graduate education! began to teach what may be called the philosophy of social science and, aside from studying some classical economic theory, I read works by philosophically-minded historians, anthropologists, and sociologists (Henry Sumner Maine, Ferdinand Toennies, Max Weber, and others). During this period and in the 1960s I diligently attended courses at Columbia Law School, including Roman law, a subject not much studied in the United States.

All of these sources shaped my thinking in the philosophy of law. It was my early training in the analytic tradition that sustained my interest in conceptual issues generally. And my later study convinced me that legal philosophy should always keep closely in touch with empirical realities. But the primary reason why I did not swallow logical positivism was that I have always been a religiously committed Jew. Yet this commitment, I believe, has not influenced the bulk of my work in the philosophy of law.

My first work substantial work in legal philosophy, however, was in the Jewish area, a doctoral dissertation, Community, Covenant, and Reason: a Study in Jewish Legal Thougt”, submitted to Columbia University in New York in 1959. Jewish law (Halakhah) is a full legal system that covers almost all that is contained in a secular, modern system and much more of a religious nature.

Drawing on jurisprudential writing, most of it in Hebrew, that stretches over 2,000 years, I attempted to describe the concept of community presupposed by Jewish law (Halakhah) generally; I attempted to formulate the theory of legal authority underlying the power of particular Jewish communities to enact further legislation; and I attempted to formulate a theory of legal reasoning that accounts for the pluralism (opposed opinions) found in the juristic elaboration of the Halaldiah. In the course of my exposition, I made reference to theorists outside of the Jewish legal tradition: for instance, Thomas Hobbes, John Austin and Roscoe Pound.

Except for two sections culled from it, the dissertation remains unpublished, and I find it interesting that it anticipates the work of later scholars on Jewish legal theory⁷. Though I did nothing further in the field until fairly recently, looking back on it now I find it pleasantly surprising how continuous with the dissertation my subsequent work in legal philosophy has been. For instance, it is a noteworthy feature of the classical Jewish legal materials, particularly the Talmud (from the third to the sixth centuries of the common era, but based on earlier sources) that the law is expounded basically without any terms that are translatable by the word “rights.” Modem expositors inevitably do use the word, while the classical materials tend to use more concrete terminology.

Nor do the latter materials seem to have any term that corresponds to the idea of moral or natural rights. (There are of course many other normative notions in play.) This fact later led me to examine the history of the concept of rights, how the concept developed in Western moral and legal thinking. It also fed my skepticism about rights, though I have begun to accommodate myself to the idea. I admit that one can no longer avoid rights-talk if one wants to engage in current moral discussion. Although I cannot go into the subject here, I maintain that rights-discourse presupposes a concept of community, because of its essentially pragmatic function⁸.

And, as I shall very briefly explain later, I think that the concept of community enters even into the analysis of legal reasoning, as well. Because the system I dealt with in the dissertation is characterised by disagreement in the juristic elaboration of the law, I was in effect concerned with the “right answer” problem that Ronald Dworkin in Taking Rights Seriously made so notorious, though I didn’t then have the ...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• Acknowledgements
• Series Editor’s Preface
• Introduction
• 1 My Philosophy of Law The Law in Philosophical Perspectives: My Philosophy of Law, L.J. Wintgens (ed.), Kluwer Academic Publishers, 1999, pp. 47–67.
• Part One: Legal Reasoning
• Part Two: Legal Theories
• Part Three: Rights
• Name Index