philosophy of law 3211

Before you begin this week’s Discussion Forum assignment, again, be sure that you have read thoroughly the Welcome! announcement posted on the first day of the semester, so that you will be familiar with the general parameters, rules and requirements for conducting your coursework properly. Please keep all of these rules and requirements (as stated in the Course Syllabus & Outline) in mind throughout the course and refer back to them in case at any time you are unsure of your progress.
Review carefully the instructions in this memorandum lecture introducing the subject matter for discussion this second week of classes, concerning classical “legal positivist” John Austin’s critique of Kant and the doctrine of “justice as natural law.”
One important part of the subject matter of the philosophy of law is judicial ethics. When conflicts arise between the manifest intent of government lawmakers on the one hand, and the flow of manifest public opinion on the other, so that certain laws which the judges are entrusted to uphold may reasonably be reckoned to have dubious moral consequences, judicial ethics may require the courts to achieve a delicate balance between faithfulness to the laws of the jurisdiction on the one hand, and a certain the integrity of decision making in the interests of achieving an impartial justice and the preservation of a peaceful order, which likewise they are entrusted, admittedly with varying degrees of deference, to uphold.
For purposes of this Discussion Forum for Week Two (Sept 1—13), in connection with your reading assignments as indicated on the Course Syllabus and Outline, you will be asked to reflect on your own ethical positions in regard to the particular questions presented herein, and to consider whether, in general persuasion, you are disposed to prefer (1) a utilitarian, or (2) a Kantian autonomy-based, or (3) a certain “contractarian,” or “social justice”-based, model of judicial decision making, though you need not be committed to relying on the same ethical theory in all discussions of moral questions or issues of public policy, or standards of judicial decision making.
Before I introduce the questions presented for discussion, I will first introduce, in this opening post to the Discussion Forum, our reading assignments for this second week of classes, and then provide you with some explanatory remarks, observations and commentary in the form of a memorandum lecture.
Your reading assignments this week include materials that are included in the Adams textbook, in Chap. 1 §C, “Classical Theories of Law”:
[1] Martin Luther King, Jr., “Letter from Birmingham Jail,” p. 78—82 (4th ed) [available at the following internal link:]
Martin Luther King, Jr., Letter from Birmingham Jail (Aug. 1963).pdf
[2] John Austin, “Legal Positivism,” from Austin’s book “The Province of Jurisprudence Determined” (1832), p. 49—54 (4th ed) [use my own edited version of Austin’s work, at the following internal link:]
John Austin, [extract from the Preface, Lectures 5-6, and the Outline from] “The Province of Jurisprudence Determined“ (1832)
[3] Caselaw: [In the Matter of] the Antelope, 23 U.S. 66 (1825), p. 157—159 (4th ed) [available at the following internal link:]
Caselaw: [In the Matter of] the Antelope, 23 U.S. 66 (1825).pdf
Additionally, you should read my abridged and highlighted texts abridged from the following works, also available at the following internal links:
[5] Immanuel Kant, [Extract from] Fundamental Principles of the Metaphysic of Morals (1785), translated by Thomas Kingsmill Abbot.pdf
and
[6] John Stuart Mill, [Extract from] Utilitarianism, Chap. 2 (1879).pdf
I will begin our discussion by introducing the above reading assignments.
The Rev. Dr. Martin Luther King, Jr., in famous his “Letter from Birmingham Jail,” written in August of 1963, addressed his fellow clergymen in the Southern Christian Leadership Conference, defending his act of civil disobedience in order to protest segregation in the public schools of Alabama, by appealing to the scholastic doctrine of “the laws of nature and of nature’s God.” He wrote
[ see the bottom of page 3 of my handout of Martin Luther King, Jr., Letter from Birmingham Jail (Aug. 1963).pdf
]
“You express a great deal of anxiety over our willingness to break laws. This is certainly a legitimate concern. Since we so diligently urge people to obey the Supreme Court’s decision of 1954 outlawing segregation in the public schools, at first glance it may seem rather paradoxical for us consciously to break laws. One may well ask: “How can you advocate breaking some laws and obeying others?” The answer lies in the fact that there are two types of laws: just and unjust. I would be the first to advocate obeying just laws. One has not only a legal but a moral responsibility to obey just laws. Conversely, one has a moral responsibility to disobey unjust laws. I would agree with St. Augustine that “an unjust law is no law at all.”
“Now, what is the difference between the two? How does one determine whether a law is just or unjust? A just law is a man-made code that squares with the moral law or the law of God. An unjust law is a code that is out of harmony with the moral law. To put it in the terms of St. Thomas Aquinas: An unjust law is a human law that is not rooted in eternal law and natural law. Any law that uplifts human personality is just. Any law that degrades human personality is unjust. All segregation statutes are unjust because segregation distorts the soul and damages the personality. It gives the segregator a false sense of superiority and the segregated a false sense of inferiority.”
Now according to the influential “classical legal positivism” doctrine of John Austin (1790–1859), a professor of law at the newly founded London University in the early 1830’s, the traditional scholastic doctrine of “the laws of nature and of nature’s God” is totally irrelevant to the work of professional lawyers and judges, who are obliged to regard only the “positive” laws (meaning the settled laws, laid down by men, cities, and republics in particular jurisdictions at particular times) as applicable in deciding the merits, the justice or the injustice, of a case or controversy brought to the courts for adjudication.
[ consult the Preface in my handout John Austin, [extract from the Preface, Lectures 5-6, and the Outline from] “The Province of Jurisprudence Determined“ (1832)
]
Laws, properly speaking, said Austin, are the “commands” of social superiors that lay down the law of the land, so judges ought not to “divine” them, so to speak, as “implicit” or “tacit” in some way in the “positive” laws of their jurisdiction. That is, judges should resist the temptation to “read in” to the positive civil laws that they are entrusted to show fidelity to, speculative notions of public morality which may have a religious or otherwise spiritual foundation, but which are not the letter of the positive laws.
American jurisprudence prior to the Civil War was firmly “positivist” in the sense intended by John Austin as stated just above. In a matter brought before the United States Supreme Court in 1825, for example, the Court upheld the right of private property argued for by the Spanish abogado (counsel) over the alleged “natural right” of the prisoners of a Spanish owned slave trading vessel to their liberty.
Study the report of this case [In the Matter of] the Antelope, 23 U.S. 66, at this internal link:
Caselaw [In the Matter of] the Antelope, 23 U.S. 66 (1825).pdf
Very few judges, if any, would hasten to, or even hazard to, concur with the opinion of Chief Justice John Marshall in the above case, which upheld the right of private property argued for by the Spanish abogado (counsel) over the alleged “natural right” of the prisoners of a Spanish owned slave trading vessel to their liberty. Marshall might have held, for example, as he did in the matter of Boyce v. Anderson, 27 U.S. 150 (1829) that “The care which might be exercised over inanimate property, which could be disposed of for its security at the will of the carrier, was not to be exercised on human beings, with the powers and rights of locomotion, and of self-preservation by different means from those which were enjoined on the carriers of merchandize.”
But in the matter of the Antelope, 23 U.S. 66 (1825), Justice Marshall found the Africans on board the Spanish vessel to be prisoners of war in the Spanish slave trade, and ruled that under the sovereign public laws even of the United States, our democratic republic, their natural right to liberty was not protected under the Constitution’s guarantee of due process for all persons within the jurisdiction.
While Sir William Blackstone (1723–1780), the great English jurist, Justice of the Court of King’s Bench (1770) and Tory politician, noted for writing the Commentaries on the Laws of England (published from 1765–1770) might very well have sided with the American friends of the Africans aboard the Spanish slave trading ship in the matter of the Antelope, 23 U.S. 66 (1825), the novel style of judicial ethics manifest in Chief Judge John Marshall’s decision in the latter American case would have been hailed as an exemplary model of judicial restraint by London University professor of law John Austin (1790–1859).
Consider closely now the following excerpt from a section titled “Law Considered with Reference to its Sources, and with Reference to the Modes in which it Begins and Ends,” in John Austin’s Outline, published in 1831, for his Province of Jurisprudence Determined (p. viii-xv)
[the following passage is included in the “Outline” section AT THE END of my own edited version of Austin’s work, p. viii-xv, at the following internal link:
John Austin, [extract from the Preface, Lectures 5-6, and the Outline from] “The Province of Jurisprudence Determined“ (1832)
]
“Every positive law, or rule of positive law, exists as such by the pleasure of the sovereign. As such, it is made immediately by the sovereign, or by a party in a state of subjection to the sovereign, in one of the two modes which are indicated by the foregoing article. As such, it flows from one or another of those sources.
“But by the classical Roman jurists, by Sir William Blackstone, and by numerous other writers on particular or general jurisprudence, the occasions of laws, or the motives to their establishment, are frequently confounded with their sources or fountains.
“The following examples will show the nature of the error to which I have now adverted.
“The prevalence of a custom amongst the governed, may determine the sovereign, or some political superior in a state of subjection to the sovereign, to transmute the custom into positive law. Respect for a law writer whose works have gotten reputation, may determine the legislator or judge to adopt his opinions, or to turn the speculative conclusions of a private man into actually binding rules. The prevalence of a practice amongst private practitioners of the law, may determine the legislator or judge to impart the force of law to the practice which they observe spontaneously.
—Now till the legislator or judge impress them with the character of law, the custom is nothing more than a rule of positive morality; the conclusions are the speculative conclusions of a private or unauthorized writer; and the practice is the spontaneous practice of private practitioners. But the classical Roman jurists, Sir William Blackstone, and a host of other writers, fancy that a rule of law made by judicial decision on a preexisting custom, exists as positive law, apart from the legislator or judge, by the institution of the private persons who observed it in its customary state. And the classical Roman jurists have the same or a like conceit with regard to the rules of law which are fashioned by judicial decision on the conclusions or practices of private writers or practitioners. They ascribe their existence as law to the authority of the writers or practitioners, and not to the sovereign, or the representatives of the sovereign, who clothed them with the legal sanction.”
In the above passage, Austin asserts that judges should recognize the difference between “positive morality” (the customary morality of the public, or, as Austin would regard it, “the prevalence of a custom amongst the governed”) on the one hand, and the “positive law” (legislated as such by the sovereign as lawmaker to the governed), on the other. That is to say, the courts should recognize their public duty to regard and apply, in the cases and controversies brought to them for adjudication, only the “positive” laws (meaning the settled laws, laid down by men, cities, and republics in particular jurisdictions at particular times for the governance of the people). It is not the business of the judge to impose either his or her own personal and varying sentiments or notions, or those of others, as to what the laws “ought to be,” from a speculative or theoretical opinion about the conventional morality of the people governed.
For clarification of the “legal positivist” position of John Austin, adhered to by many judges practicing in America today, study closely the following recent discussion by New York University School of Law Professor Richard Epstein. (Prof. Epstein is a prominent law professor, having authored the cases and materials in the Law of Torts, for example, that was used in the course I took in my first year of law school at the University of San Diego, where I obtained a J.D. degree—I had already obtained a Ph.D. in Philosophy at the CUNY Graduate Center in philosophy, specializing in pragmatism and Kant studies):
The classical legal positivist doctrine advocated by John Austin was stanchly utilitarian, firmly in the tradition of Scottish Enlightenment thinkers such as Adam Smith and Jeremy Bentham, the latter a vocal critic, just as Austin was, of Blackstone’s jurisprudence. Bentham had argued, as against Blackstone, that only the lawmakers of a city or state have the right to exercise authoritative judgement to lay down positive laws serving “the greatest happiness” of those that might be affected by the law.
I have already introduced, for purposes of last week’s Discussion Forum, some other important modern moral attitudes analyzed in classic works of philosophical ethics that have played a dominant role in legal reasoning since the Enlightenment Era (the period of cultural history embracing the American and French Revolutions).
Read now, with special attention to my highlighted sections therein, the following two papers:
[1] Immanuel Kant, [Extract from] Fundamental Principles of the Metaphysic of Morals (1785), translated by Thomas Kingsmill Abbot.pdf
and
[2] John Stuart Mill, [Extract from] Utilitarianism, Chap. 2 (1879).pdf
Legal positivists adhere to the “utilitarian” formulation of the good and right, opposing Immanuel Kant’s doctrine of “autonomy in the moral law” as fictitious and grounded in implausible notions of man’s power to determine “universal and necessary laws of nature” that are binding on all rational persons throughout the world.
The utilitarian philosopher John Stuart Mill, in the second writing just above, meant to come to the defense of such older utilitarian moral philosophers such as David Hume and Adam Smith, to whom the renowned German Enlightenment philosopher Immanuel Kant, in the first writing just above, had replied with severe criticism and a different ethical theory.
True morality, Kant had said, could not be founded, as utilitarian moralists generally suppose, upon the subjective feelings and drives of sympathy or compassion. Instead, true morality, said Kant, resides in each rational being’s power to render his conduct and acts consistent with a perfectly “good will,” namely, a will that lays down (“autonomously”) objective “laws of nature” binding on all rational beings. For all rational beings, if they in fact be rational beings (not crazy), would recognize and respect the right of such a “good will” and the “law of nature” which obliges us all, universally, to respect that right.
The sensuous feelings of sympathy and compassion, said Kant, force themselves upon us “heteronomously,” from the outside, and very often come into conflict with our power to act “autonomously,” namely, with self-determination. When one acts in such a way that it would be irrational to disrespect what he is doing, or has done, he makes “natural law” through his own will, and thus his action is not only totally moral, but totally free as well, for no rational being would challenge his right so to act.
In modern times, Thomas Hobbes, the 17th century English philosopher was the earliest proponent of a “contractarian social justice” theory. Hobbes’ “social contract” theory of the archaic origins, purposes and construction of the institutions civil government, was later adapted into a more politically liberal version by Immanuel Kant’s “Doctrine of Justice” (1797)—and more recently by Harvard Professor John Rawls during the Kennedy-Johnson “Great Society” era in the 1960’s, when our Medicare and Medicaid social welfare programs were enabled by Congress to provide financial medical assistance to our infirm, elderly and impoverished citizens.
According to Hobbes, prior to, and in the interruption of, civil government—a condition Hobbes refers to as “the State of Nature” (later referred to by John Rawls as “the original position”)—persons by nature, by virtue of their “natural right” to liberty—a certain freedom to exercise rational choice in the common pursuit of their happiness—undertake to risk, in their day-to-day lives, the efforts and fruits of their work in a competitive environment of scarce resources, wherein they, again by human nature, seek to obtain for themselves things that they cannot share with others.
Because such free men in the hypothetical “State of Nature” (the “original position”) fear—more than they fear undertaking on their own to seize an undue advantage over others—the more disagreeable position of being made subject to victimization by invaders that would deprive them of the fruits of their own work, they all “contract,” each with every other member of society, to “lay down their right of nature,” and to confer and invest it all in a common government which would have the collective power to enact laws securing rules of peaceful terms regulating the competition for scarce resources and, therewith, decent customs of conduct toward one another in civil society.
Men accordingly pursue peace “by nature,” with all the human heart, drive, and sentiment or compassion for their fellow men that they might muster. But Immanuel Kant objected that the Scottish Enlightenment writers of his day failed to acknowledge that men are able to do so successfully only by determining their will to achieve terms of peaceful competition under rationally guided principles of universal accord, so that each rational being should subordinate his subjective advantage to universally binding principles of conduct that would render his acts consistent with a perfectly “good will,” namely, a will that lays down (“autonomously”) objective “laws of nature” binding on all rational beings. For all rational beings, if they in fact be rational beings (not mad), would recognize and respect the right of such a “good will” and the “law of nature” which obliges us all, universally, to respect that right.
Hence Immanuel Kant, in his “Doctrine of Right” (1797), held that the right and just consists in a reciprocal accountability or duty of care in accordance with the freedom of every one under the principle of a universal freedom, so that social and economic inequalities must be arranged so as to maximize the greatest benefit of the least advantaged. Examine now Kant’s own formulation of this “supreme principle of law” or “first principle of justice,” (translated into English by J.W. Semple, in “The Metaphysics of Ethics by Immanuel Kant,” pub. by Calderwood, Edinburgh: T. & T. Clark, 1886, 3rd edition), at the following links:
https://oll.libertyfund.org/title/calderwood-the-metaphysics-of-ethics#lf0332_label_144
and Kant’s corollary to the above principle at the following link:
https://oll.libertyfund.org/title/calderwood-the-metaphysics-of-ethics#lf0332_label_146
For additional discussion of how Prof. John Rawls (1921—2002) was adapted from Immanuel Kant’s “Doctrine of Right” (1797), you may consult the following Internet Encyclopedia of Philosophy restatement of John Rawls’ theory, written by Georgetown University Prof. Henry S. Richardson @:

Rawls, John

As I indicated at the beginning of this opening post, in connection with your reading assignments as indicated above, for purposes of this Discussion Forum for Week Two (Sept 1—13), you are asked FIRST to reflect on your own ethical positions in regard to the particular questions presented herein, and to consider whether, in general persuasion, you are disposed to prefer (1) a utilitarian, or (2) a Kantian autonomy-based, or (3) a certain “contractarian,” or “social justice”-based, model of judicial decision making, though you need not be committed to relying on the same ethical theory in all discussions of moral questions or issues of public policy, or standards of judicial decision making.
THEN, in planning your contributing post(s) to this Discussion Forum, you are asked to imagine yourself in the position of Chief Judge Marshall deciding, in 1825, the matter of the Antelope, 23 U.S. 66. You must decide the questions presented in that case, as if you were deciding it back in 1825. In your contributing post(s) explain how you would have applied ONE of the three ethical theories and respective approaches to moral decision-making as stated above—namely, your choice from among (1) a utilitarian, or (2) a Kantian autonomy-based, or (3) a contractarian social justice-based, model of judicial decision making—which you believe would be the most relevant or capable of being put to use the most effectively (THE ONE MOST APPROPRIATE IN YOUR MIND) in deciding the questions presented in that case, [In the Matter of] the Antelope, 23 U.S. 66 (1825).
Your objective in this this Discussion is to help us achieve a delicate balance between faithfulness to the laws of the jurisdiction on the one hand, and, on the other, a certain the integrity of decision making in the interests of achieving an impartial justice and the preservation of a peaceful order, likewise a duty with which our judges are entrusted, admittedly with varying degrees of deference, to uphold.
Mindful of what your task in this Discussion Forum is, you should recognize the reasons why a majority of our lawmakers in Congress believed enact the laws that they do, together with their restrictions, believing that such laws that they enact are justified by a legitimate governmental interest— that on the balance enacting such laws is good and right, the moral thing to do—and you should recognize that the reasons why they believe this will likely vary from lawmaker to lawmaker, depending on whether a particular lawmaker might have been disposed to prefer, perhaps either:
(1) the “utilitarian” doctrine of “the greatest amount of quality pleasure for all concerned” analysis of how to decide the moral thing to do; or
(2) the Kantian “autonomy-based” doctrine that the law must support and protect, enable and encourage, individual responsibility for choices consistent with a those that could be willed by a perfectly “good will,” meaning choices that all rational beings, everywhere, would respect as good and right under the circumstances; or
(3) the “contractarian social justice-based” theory according to which the public laws should support a certain reciprocal accountability or duty of care of everyone to every other in society, in accordance with the freedom of every one under principles of universal freedom, so that social and economic inequalities might be arranged to serve to the greatest benefit of the lesser advantaged citizens; or
Again, in your contributing post(s) to this forum (to THIS thread which I am opening for purposes of your assignment) you are asked to imagine yourself in the position of Chief Judge Marshall deciding, in 1825, the matter of the Antelope, 23 U.S. 66. You must decide the questions presented in that case, as if you were deciding it back in 1825. In your contributing post(s) explain how you would have applied ONE of the three ethical theories and respective approaches to moral decision-making as stated above—namely, your choice from among (1) a utilitarian, or (2) a Kantian autonomy-based, or (3) a contractarian social justice-based, model of judicial decision making—which you believe would be the most relevant or capable of being put to use the most effectively (THE ONE MOST APPROPRIATE IN YOUR MIND) in deciding the questions presented in that case, [In the Matter of] the Antelope, 23 U.S. 66 (1825).
State the grounds (the evidence and reasons) for holding your position CLEARLY AND CAREFULLY. Keep in mind that this is of course your weekly assignment for class, not simply an internet message board.* You must answer both the general and specific questions I have presented in this opening post. For EXTRA CREDIT you should go on in your post to debate prior postings by your classmates in THIS THREAD. And (so long as your first post directly deals with the above general and specific questions presented) you may go on to respond with additional posts in reply to successive later posts by your classmates that challenge the position in your initial post. In order to adequately deal with the above issues (for competitive assessment purposes that is, in order to receive an ‘A’ grade rather than a ‘C’ grade, which will be my grading range) I expect that your initial post should be at least 250 words in length but not more than 500 words in length.

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