recently I read this statement from Thomas solo a man of uncommon common sense so I decided to make this recording only for those who have a general interest in legal philosophy and so this is not for academics I want to make sure I start at the very beginning and to place legal philosophy in a broader context having looked at course outlines for legal philosophy courses that at a number of universities I was struck by how shallow and unfocused those courses appear to be so I have ignored those outlines and created one that I think is more appropriate and in fact as unique it very briefly covers some topics which I think need to be understood before diving straight into legal related topics I'll try to explain why they need to be understood before going into the main subject matter so let's begin traditionally legal philosophy has addressed itself toward the most important issues for example is every law derived from principles of natural justice what gives laws their authority over us our human law is sufficiently particular to be applicable to all situations and all circumstances who is entitled to make laws for a society this question seems especially relevant in the u.s. right now as some people are beginning to question the appropriateness of regulatory agencies effectively making law with little oversight by elected representatives can the principles of natural justice be changed what are the purposes of lawmaking is there a relationship a necessary relationship between lawmaking and ethics or morals do the answers to such questions rest on principles of right and justice or on something else such as the idea that might makes right before we dive into legal philosophy and try to answer questions like these we need to agree on certain presuppositions at least tentatively without agreeing on them now we would have to spend many days going in-depth and behind the curtain regarding these presuppositions piecemeal but we don't have that luxury here so I'm going to ask for your agreement on two major ones for now without expanding or defending them at any length both are essential before we can proceed into legal philosophy itself the first presupposition is a commitment to what is usually called realism realism involves four points let me walk through those one by one it involves an affirmation of a reality outside our own minds in other words a world of real existences that are independent of your mind or mine an affirmation that the world the order of real existences has a determinate structure of its own that is it is whatever it is regardless of how we think about it an affirmation that the world the the structure of reality is intelligible and finally an affirmation that the world having this knowable structure provides us with the basis for determining whether our efforts to know it fail or succeed that last point asserts that our theories can be falsified or confirmed by reference to something which is extrinsic to an independent of our own minds the opposite view since the time of Immanuel Kant which has generally been known as idealism and in some recent philosophical literature that I've read has taken a new form and a new naught and a new name call constructivist philosophy idealism and philosophy is the denial of a knowable reality that is independent of the human mind and its ideas concierge in this respect infects much of modern philosophical thinking for example I was recently thinking about why so-called women's studies programs avoid delving into biology genetics and other natural sciences and I was also wondering why all academics in that area tend to be philosophical positivists it seems to me that they may have imbibed cons denial of an knowable independent reality and that may explain why we hear such phrases as social construct and social construction I may come back to this idea a little bit later on the second basic assumption concerns the constancy and character of humanity it too requires four affirmations four for our purposes it affirms that humanity has a determinant specific nature which is itself a determinate part of the real world furthermore it affirms that among the properties of humanity's determinant nature our cognitive powers are adapted to knowing whatever is knowable about reality including humanity itself as part of that reality and it affirms that humanity's cognitive faculties are exhausted by all of the sensitive powers in other words by its abilities to perceive remember imagine and so on it also includes the powers of understanding and reasoning which are usually regarded as the powers of mind or intellect these two basic presuppositions are applied to philosophy generally and has no special meaning within the philosophy of law but you need to keep them in mind as we as we proceed many modern legal philosophers dispute one or both of those presuppositions sometimes explicitly and other times by implication or may be by accident and ignorance today most legal philosophers reside in law schools for reasons I don't entirely understand philosophers and academic philosophy departments have largely abandoned related topics like law political theory and government one unfortunate turn has been the turning inward of such academics in their thinking and writing they for the most part talk only to each other often in jargon Laden ways that make their work of little value begotten beyond their own particular narrow circles I'm going to try to make my explanations as plain and simple as I can make them to avoid the problems that we hear sometimes when we try to listen to what academics offer and what they say that's because many of the ideas about law should be of interest to any thoughtful person as the late of philosopher Mortimer J at or always said philosophy is everybody's business when we're talking about law we're talking about a constituent part of a state in the case of the United States we could be talking about the federal part or subversive ordinate units at any level so when I use the term state I'm talking about what's common about law at any level of a nation state a perennial question that's asked about States is whether a state is natural or merely conventional in other words what is the origin of the state for Aristotle the state is natural now compare that view with Thomas Hobbes Leviathan where Hobbes again and again refers to the Covenant or convention by which the state originates so at first glance it looks like aristotle and hobbes are diametrically opposed on this foundational issue but when you look a little closer these two philosophers seem to be an agreement on many things in fact both of them agree that the state is both natural and conventional Aristotle says that the state is natural because it arises first out of humanity's real needs in his book politics he follows the origin of the state back from the state to the village then to the family and finally to the union of husband and wife as he says the state comes into existence originating in the bare needs of life and continuing in existence for the sake of a good life and therefore if the earlier forms of society are natural then by implication so is the state now Aristotle also knows of the state although natural doesn't come into being without the voluntary efforts of human beings to institute it and he knows that it doesn't develop in the same way in which say a tree does entirely through nature he then as this critical insight yet he who first founded the state was the greatest of benefactors and in the process acknowledging that the state is conventional but not entirely conventional and will be careful and the implications we draw from that let me try to make the point here a human political society one constituted by human beings differs from the Society of say bees or ants their state if we can use that term in context referring to the way they organize their society is completely natural existing entirely as a result of their instinctive impulses and actions human society is both naturally founded and conventionally constituted in its details now most philosophical positivists as well as legal positivists don't seem to understand that nature and convention can act cooperative cooperatively rather than an opposition and I might draw your attention to illustrate the point is the novel by the Robinson Robinson Crusoe written by Daniel Defoe and for a moment imagine that Aristotle wrote that novel rather than Defoe as Aristotle writes he said that man completes what nature cannot and what Aristotle is saying here I think is that if he had written Robinson Crusoe which according to Defoe it it portrays man against nature but if I think if Aristotle had written that novel it would have been a very different book and it would be an example of man cooperating with nature if that's true then the same thing can be said of law that there is both a natural and a conventional aspect to law in its origins let's look at this in a slightly different way many species of animals are social animals and it would include bees and ants The Beehive and the ant mound both demonstrate that bees and ants are social animals but note that those animals always build their hives and their mounds the same way everywhere and over countless generations sometimes for millions of years in other words they build them entirely naturally now similar to other social animals you unkind is also a social animal and I don't think that's in much dispute today so in other words humans are by nature social animals in fact I think that's indisputable for example all that we have to do is look at the evolutionary evidence of that social nature because say human young are entirely dependent on others for their care feeding and survival for years so thus humans have evolved to continue the species but that's not all that humans are they are also rational animals capable of making free choices and are thus also political animals politics is all about making choices and furthermore humans don't abandon their social nature just because they are also rational animals as some academics seem to think I realize that some say that humans don't have a species specific nature I happen to think that that notion notion is rather easily refuted but that issue will have to wait for another time so herein lies Aristotle's truth that all that humans do requires that we acknowledge both their social nature and their rational nature in all that we do all the time the logical implication that Aristotle draws is that all of our society's institutions are always built on a natural foundation that incorporates our species specific nature even though the rational decisions we make in the process are largely conventional this is why we refer to the study of topics such as law ethics politics economics and so on as social sciences it may help your understanding here if the next thing I do is look at the critical differences not just for law but in in wider topics as well if I could draw some critical differences between the social sciences and the Natural Sciences is quite common today to see academics fail to recognize or acknowledge these critical differences the objective objective of any investigative Natural Science is a natural thing of one kind or another in change in other words it's an investigation of a particular kind of thing and a particular kind of change for example physics deals with the causes of changes now compare the object of an investigative social science thing as a social thing as I said before every social thing is only partially natural while also being partially conventional or a product of voluntary human action human society is natural because humans are by nature social animals as we've already talked about but any particular society is constituted by humans as a rational and voluntary determination of that society's social powers so it adapts to contingent circumstances as they change as natural social entities are studied in psychology since the natural principle of social entities is human nature as social as conventional social entities are always particulars and therefore knowledge of them is necessarily historical and not scientific knowledge this includes law of course and from that it follows that social entities can be objects of science or really can't be objects of science in the strict sense but must be objects of a mixture of psychology and his three keep in mind what I'm talking about here when I use the term social entity it can be just about anything involving human interaction such as language the family economics politics ethics and law itself in law we might refer to a nation's Constitution as a social entity from here let's try to find the proper place for law in the order of knowledge I've never seen a filial philosophy course addressed this critical issue it may help if I draw some simple distinctions between the speculative order of knowledge and the practical order of knowledge first keep in mind that knowledge in and of itself as knowledge is neither speculative nor practical the primary distinction between the speculative order and the practical order is in the terms of the ends of knowing that is their purposes in the speculative order the end of knowing is the knowledge that's achieved in other words knowledge about what is or is not the case in the practical order the end of knowing is not the knowledge that's achieved but extrinsic operations involving either doing or action in other words about what ought or ought not to be done it may help here may help here if I take a moment to describe what I mean about truth in the speculative order and in the practical order to see where I'm coming from in the speculative order in the realm of what is or is not the case truth is achieved when there is correspondence between reality and the thoughts we hold in our mind about it when we make descriptive statements about reality we speak the truth when there is correspondence between our statement in reality now in the practical order insofar as we're speaking about ethics the definition of prescriptive truth is sharply distinguished from the definition of descriptive truth that I just gave you prescriptive truth consists in the it's another it involves a conformity but not between reality between reality and our mind between something else it's a conformity of our appetites with so-called right desire this idea comes from directly out of Aristotle the practical or prescriptive judgments we make are true if they conform to right desire in other words they're true if they prescribe what we ought to desire this definition of the of true prescriptive judgments originated with Aristotle but seems to have been entirely lost in modern times I think I'll leave things right there for right now we could say much more about this topic but I fear of going too far afield from our core discussion about law so while this discussion about ethics and morality when talking about law it's because I want to demonstrate that ethics and law are existentially inseparable we may be able to discuss law and ethics as though they are entirely disconnected but they're not in other words law and ethics may be analytically distinct from each other but they are existentially inseparable let me see if I can convince you that this is true let me take this one step further and say that the fields of practical knowledge ethics and politics can be distinguished as parts of the unity we've already talked a little bit about this recall what I said that humanity is both a rational animal and a social animal the distinction between the ethical and the political aspects of practical problems is based on this analytical separation of a human's powers in ethics were concerned with human perfection as the actualization of the human's powers as a rational animal but in politics we're concerned with human perfection as the actualization of a human's powers as a social animal humanity as a rational animal as I've already said several times is social and as a and is thus a social animal but is also rational ethics and politics can't be separated in other words except analytically this fact has been largely lost on modern legal philosophers most of whom are legal positivists and I will go into that a little bit more detail as I try to explain how they came about to overlook this connection the main point here is that law is an aspect of politics and that politics and ethics together form a unity existentially this is why if you're familiar with the works of Aristotle you can view two of Aristotle's books the Nicomachean ethics and politics as being two sides of a single coin one side addressing the ethical aspect of the individual and the other side dealing with the common good of society and that individual's role in that society if we drill down the union of the unity of ethics and politics can also be seen when we look at the double function of law which is to make humans good either absolutely or relatively to a given state as a citizen and to achieve the common good by enforcing peace and order so the the nature of law the ins of law and the sources of law must be analyzed in the light of both ethics and politics on the ethical side rules of law are merely some of the rules of conduct which determine actions as means to happiness recall in the US Declaration of Independence the the goal of the society is to allow us to pursue happiness and in this sense happiness is the totality of goods in a purely normative sense it does not mean contentment or such similar words the sense in which it is used in the Declaration of Independence --is is unique it is a normative sense happiness as being an enormity of sense we might summarize it in the following statement a whole life well lived on the political side rules of law are only some of the rules of administration or political devices which determine actions as means to the common good of that society so rules of law don't form intellectual virtues for example and education is also a political instrument as much as law to make humans good citizens and thus to achieve the good state this is the point at which I usually introduce the idea of natural law which is another name for what I refer to as the first principles of the practical intellect again here in the the practical order of knowledge and not just in the descriptive order it directs humans to seek the good in other words as I've described right desire justice and ethics is the sum of the moral virtues as these are regarded social in our society justice in politics is a means to the common good of the state I might mention here just a little bit of a side but it's I just want to get this out because it's itch that I need to scratch I wanted to focus on the term social justice we hear this all the time from all kinds of people and in my view that phrase social justice is either entirely redundant or is tantamount to injustice in various ways again think for a moment again about Robinson Crusoe as long as Crusoe was alone on his island the idea of justice was of no use to him it was entirely irrelevant but it became of importance after Friday arrived on the island so my point here is that all justice is social and always involves social interaction either between individuals or between an individual and the state so at a minimum the term social justice is in is redundant because all justice is social all the time so law as a political instrument has justice as its end as I've already explained as particular rules of conduct which aren't laws have the virtue the virtues as therein as I said law is not the only one system that we need in a society you must also be remembered that legal justice is one means to the common good hence the question whether unjust laws can never serve the common good conversely a law may be just but we also need to determine whether that law is politically unwise in the particular contingent circumstances remember that choice is always required in politics and thus also in law as an aspect of politics from natural law or natural justice as I prefer in in the sense of which I've used that term the knowledge of humanity is a social animal we can deduce the principles which are common to all bodies of human law the latin phrase traditionally traditionally used here is use gentium which you can see on the screen from these principles and knowledge of particular kinds of societies and particular kinds of social change are determined are determined so the rules of law can be enforced in a given society and the latin phrase traditionally used is a use Sevilla Seville I guess it would be pronounced taking into account all the things I've said about justice I think we can say at this point that I hope I've convinced you is that the philosophy of law should be seen as an aspect or chapter of ethics / politics next I want to turn to what is generally known in legal philosophy as legal positivism the reason why I need to talk about it is because it is by far the dominant view in modern times most of what we've talked about so far stands in sharp contrast to legal positivism I'm sure you've figured out now that they've guessed that I am a naturalist who acknowledges that all our social entities are largely but not totally conventional in their particulars positivism philosophically and legally adopts a very different view of the world than does naturalism let's look at how it works first positivism denies philosophy in the speculative order as well as it does in the practical order of knowledge and when we look at this and it's sort of a negative sense and a positive sense on the negative side positivism is a lot like sophistry like the extreme ancients office the positivists deny metaphysics in the speculative order and insists that all practical questions are answerable only by opinion or in other words that the good is merely and entirely conventional on the positive side positivism insists that all knowledge in the practical order is purely investigative that is either science or history this is tantamount to a denial of human ends and to a denial of the normative and prescriptive character of the practical order as a result we've seen some unusual things happen for example we have in the the origin in the 19th century of the so-called positive social sciences which are supposed to be investigative sciences in the same sense as the positive Natural Sciences are I've already addressed this error of before when I compared investigative Social Sciences with investigative Natural Sciences as a result we have the substitution of starting in the 19th century of ethnology for ethics that is the study of mores instead of the development of moral philosophy and we see the substitution of what is called empirical political science for political philosophy as well as the separation of economics from political economy in the development as well in the development of sociology there are some errors involved in this 19th century development that I want to mention for example the denial of the essential distinction between the speculative and the practical orders with the resulting sophistical position with regard to all practical questions unfortunately the history of the philosophy of law in the modern world is necessarily a history of similar errors thus we have the utilitarians exemplified by Jeremy Bentham we have the idealist or so-called constructivists such as Kant and Hegel and we shouldn't forget the positivist or we call them the sociologists who were known in the first half of the 20th century as legal realists let's talk about some of the beliefs of the legal positivists keep in mind that consistency is not a hallmark of positivist so you'll find all sorts of contradictions and inconsistencies and the views of of positivists of philosophically and legally just a reminder again that social entities like law are naturally founded while being conventional in particular x' like other social entities the natural aspects and the conventional aspects of law can be analytically distinct while still being existentially inseparable positivists give law precedents and primus primacy over the idea of natural justice rather than the other way around in other word they deny that law is in any way natural instead of regarding natural justice as the foundation from which man-made laws spring and the course of its of the source of its Authority and as well as the measure of its legitimacy in other words the positivists turns things completely upside down it regards positive law the man-made law of the state as the sole source of justice the only determination of what is right or wrong for individuals to do in relation to one another and to the community itself the positivist view ripples through philosophy and morals in unexpected ways and I want to give you some examples it neglects or rejects the distinction between real and apparent goods and thereby renders right desire as thoroughly unintelligible similarly it does the same thing between natural needs and acquired wants the positivist can find no basis for the distinction between what ought to be desired or done and what is desired or done according to the positivists there are no natural rights no natural justice ending up with the conclusion that man-made law alone determines what is just an unjust or right and wrong there are other distinctions that have been made in the law for centuries which the positivist view obliterates let me list just a few of them here I would like to point out that not every positivist will agree with every item on this list but all of the items are logical necessary conclusions from the extreme positivist view they include the view that might makes right they have no other basis to determine the legitimacy of law than other than the interests of the powerful there can be no such thing as a tyranny of the majority that 1/3 is that there there are no criteria for judging laws or constitutions as unjust and in need of amendment positivists disagree with the natural conclusion that an unjust law is a law in name only positive laws have force only and no authority according to the positiveness only through if there's any at all it's only through the fear of punishment that goes along with it it also if you went to law school you are familiar with two latin phrases mala prohibitor and mala in say it obliterates the distinction between laws which are mala prohibitive and laws which are mala and say for hundreds of years naturalist have maintained that there is a distinction between laws which reflect underlying acts which are bad in and of themselves for example laws against murder or against theft that's on the one hand and that there are other laws that are merely for convenience and the sake of good order such as traffic laws governing which side of the road one should drive on the positivists sees no distinction in this respect between murder laws and traffic laws I want to stress that the thing is worth mentioning that the divide between the naturalist like me and the positivist doesn't line up in accordance with the views of the political left and the political right to prove that I would like to read from the writings of the late judge robert bork bork was a thoroughgoing positivist when Bork was being considered for a seat on the US Supreme Court he was supported by conservatives who liked the results he reached and he was also opposed progress's for the same reason yet there were many positivists on both sides of the political spectrum here's what Bork wrote many years ago but I'm going to quote exactly from him no system of morals or ethical values has any objective or intrinsic validity of his own if a right is not specifically listed in the Constitution then it is just a preference or a gratification going on here according to bort courts must accept any value choice the legislature makes unless it clearly runs counter to the choice made in the framing of the Constitution in other words I suppose had Bork been a judge prior to the abolition of slavery Bork would have felt duty bound to enforce slavery laws he also said this again to be needed any more evidence every clash between a minority claiming freedom from regulation and the majority asserting his freedom to regulate requires a choice between gratifications in other words here Bork is saying that the preferences and the gratifications of the majority must prevail unless there's some explicit provision in the Constitution positivists of the political right and left have no rejoinder to Bork's poisonous views and no way to rebut Bork's views in a principled manner the guidebook for modern legal positivists appears to be HLA Hart's much overpraise book named the concept of law when you read it you'll notice that it is entirely descriptive and purports to be a complete explanation of law you'll find nothing regarding what the law ought to be nothing about laws existential aspect of politics / ethics as I've described legal positivism is especially troubling when positivist claimed that law is entirely conventional and thus merely comprised of preferences as Robert Bork did in jurisprudence the positivist denies natural law there they confirm the contingent and variable enactments of political communities to be the only laws there are as more generally the positivist denies the necessary truths of philosophical knowledge it affirms the contingent and variable conclusions of scientific research to be the only valid knowledge there is and in both cases the same result occurs positive law just like positive science becomes unintelligible in my view positive law like positive science tends towards this exchanger extreme of being entirely conventional entirely man-made and arbitrarily imposed note again how the social sciences and the Natural Sciences are conflated thereby ignoring the radical difference in kind in their objects of study I was just reading a perfect example of this from a law professor analyzing law through the postmodernist lens of Michel Foucault he calls law in his words a mere latticework a complex lattice work of power relationships in other words there is no ethical dimension in law just a struggle between interests of the powerful he goes on like this for about 20 pages and he singles out for special criticism legal naturalist like myself so I hope I've convinced you that positivism has many many flaws and is not the best explanation of the role of law in any society so let me sum up what I've said today we talked about our need to take a position on whether there's a knowable reality that exists independent of the human mind your view on that issue alone will affect much of what we talked about today we also discussed briefly the question of whether humans have a species specific nature there really wasn't much contrary opinion on this until quite recently especially since the 1960s I think those who say that there is none make a critical intellectual error they look at other animals many of which which exhibit strong traits such as the way they build their nests or their sexual behavior but when they look at humans they see no strong such tendencies they don't if they don't because humans have the power of free will in other words they can choose to do pretty much anything differently they then draw the wrong conclusion here that humans have no such nature and in my view their conclusion outruns the evidence instead I think they should recognize that humanity's nature differs radically in kind from that of all other animals and I might if I had to encapsulate it and encapsulate it in a single word it would be possibilities something that is entirely lacking in all other animals social entities we also talk about how social entities are both natural and conventional most are overwhelmingly conventional but social entities are never entirely conventional or as some say social constructs I would keep in mind the distinction I drew between the Natural Sciences and the social sciences it will make it easier to analyze other social science issues next recall that we talked about how law is part of politics and the politics and ethics form a complex unity existentially both ethics and politics can be analyzed separately but that's all we can do because they are existentially inseparable next we discussed legal positivism and looked at some of its implications positivism is overwhelmingly the current view in law and in other social sciences as well and that might include the issue of language the family and so on and I explained why I think that legal positivism is especially dangerous when it tends to the extreme of being entirely conventional okay that's all I have to say and I want to thank you for listening