Philosophy and the Law
With what right do governments make and enforce laws? To what extent are citizens obligated to obey the law, even if a law is unjust? John and Ken talk about philosophy and the law with Jules Coleman from Yale University.
There are different kinds of laws: moral, natural, political, etc. Some of them are normative, like morality, which means you ought to obey it. Some of them are descriptive, like natural laws, which describe how things are. What is a law? An easy answer is that it is whatever the lawmaker says. Should we obey laws just because they are laws? Ken introduces the guest, Jules Coleman from Yale University. Coleman says that we can distinguish what is law in the sense of legal systems, in the sense of what differentiates a law from other rules, and in the sense of what the local laws are. Usually the second sense is some positive contribution by the lawmakers. Are there any restrictions on what the lawmakers can do in theory? Legal institutions claim to be legitimate and also that there are no areas of life that they are bound not to enter in principle. Constitutions can put limits on law though. However, the source of the law, not the content, is supposed to give us reason to act on the law.
Thomas Aquinas thought that an unjust law is not a law at all. Are laws constrained to be moral? Laws are a bunch of social facts. What makes them any more important than facts about mountains. One view is that fear of sanctions makes law more important. Others think that the normative force of law is grounded in morality, so all laws must have some minimal moral content. Ken asks, even if laws should be constrained by morality, aren't law making and law makers not bound by that? Police and courts are still bound by immoral laws. Coleman responds by saying that there are constitutional constraints on legislation and enforcement, although immorality itself can't stop something from being a law. Are legal systems dependent on which moral system is in place? Coleman thinks not.
Coleman thinks the law doesn't mean just what a judge says it means because a judge can be wrong about it. What decides what is a law and what is an (mis)interpretation of it? How much influence does normal usage influence law? Does the intent of the legislature matter? Is civil disobedience admissible? It depends on how we take the law as a practical authority. Once we decide that, we have to figure out when it is reasonable to ignore it. Is there a tight connection between law and morality?
- Polly Stryker the Roving Philosophical Reporter (Seek to 04:20): Polly interviews David Solmet, a man who protests what he considers unfair laws and legal institutions through civil disobedience.
- Ian Shoales the Sixty-Second Philosopher (Seek to 50:00): Ian Shoales gives a quick overview of a great figure in the history of law, the Athenian magistrate Draco.
Jules Coleman, Wesley Newcomb Hohfeld Professor of Jurisprudence and Professor of Philosophy, Yale University
- Jules Coleman's Philosophy of Law: An Introduction to Jurisprudence
- Oxford Readings in Philosophy Series Philosophy of Law
- L.A. Hart's Concept of Law
- Mark Tebbit's Philosophy of Law: An Introduction
- David Patterson's Philosophy of Law and Legal Theory: An Anthology
- Brian Bix's Dictionary of Legal Theory
- Dennis Patterson's Companion to Philosophy of Law and Legal Theory
- Douglas Baird's Game Theory and the Law
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