The Definitional Question

Right. Good day. My name is John Stanta knife. I'm

a reader in law at King's College London.

And in this first lecture, I'm going to take up

first question

about the relationship between law and morality.

And this we can call the definitional question.

And the idea here is, is there something about the definition

of law about our understanding

of law that necessarily involves morality.

How far is does morality enter into our definition of

what law actually is.

Now what is law then?

There are two sorts of answers roughly speaking, very

broadly speaking that have had prominence historically.

One sort of answer says that law is actually just a

part of morality. It's essentially a branch of morality.

And an opposing view says, no, no, no, no, no, that's

actually trying to suggest that law is a rather finer thing

than it really is. In fact, the law is, it's something like

power. It's about power relationships.

It may be used for very bad ends

perhaps hopefully used for good ends, but it's essentially

a system of power.

Now,

so

the first answer which suggests

an early crude version of the answer, Lori just is morality?

Well, that immediately sounds suspicious, doesn't it?

Because I think we can all think historically of some

examples of laws that have been bad, not just bad, but

very bad. In fact, even evil, one might say in some, in some cases.

Well, one example.

The nineteenth century

eighteen fifty seven, the United States of America going

up to the Supreme Court, a case that reached the Supreme

Court in the US, a case called dred Scott, against Sanford.

Now dredscott was the name of a slave

and He brought an action suing for his freedom, which found

its way to all the way to the Supreme Court.

A part of the state that he was living in had been resident in

for a while had suggested that there was a a free, a missouri

so called missouri freedom.

Compromise.

And so he argued that he was a person under the constitution

and therefore should be free.

The US Supreme Court said said no, but he was

essentially property and he did not have constitutional rights.

And he was a part of the property of somebody else,

and and that somebody else could not have their property

deprived from them without you.

Process of law and various other conditions. So a pretty,

in retrospect, a a shocking,

decision but clearly a legal decision

from the Supreme Court, of the United States. So we can't just

simply say that

law is morality because then we need to explain why

it does such terrible things on occasions and what I think as

well of apartheid South Africa.

That was that's a legal structure.

Similarly there were Nazi laws under Nazi Germany.

So that leaving that to one side. I mean, The game isn't

up for those who think that that morality is the key

to our understanding of law,

but it's clearly going to have to be more sophisticated than

just suggesting that the

simply that the law is

is moral, is an aspect of morality.

But so so tacking tacking to the other side, what What if we

say then that that actually law,

it's it's really about something like power or force,

something along those lines?

Now a a famous theory on along these lines was produced

in the nineteenth century by the English utilitarian,

legal theory John Austin.

Now Austin said that

law is essentially

boils down to orders that are backed by threats. They're a

form of coercive threats.

Who are they whose threats, the threats of a sovereign

and and as a sovereign issues threats and

to to to persons

subjects that are in the habit of obedience to that sovereign.

So what is known? It's orders backed by threats issued by a

sovereign The sovereign who's independent and in the habit of

obedience to nobody

issued to a populace who are in the habit of obedience to

the sovereign. Okay. So that is what law is. It's

not it's not something something moral. It's essentially

coercive. It's the it's the coercion of a of a sovereign of

a subject

population underneath it.

So that that was that was the explanation.

And in many ways, that does seem to capture something

about the nature of law. It's certainly clear that that that

law is often, coercive.

The most obvious example being being the criminal law and that

there's threats of imprisonment if certain conduct is engaged in.

But then there also seem to be some some difficulties about that suggestion

and many of these difficulties were were pointed out by

another so called called positivist called HLA Heart.

Now, first of all, what about the idea of the

the sovereign.

So we're supposedly the idea is the populace is in the habit of obedience

to a sovereign. Okay.

But if you think about the law, think about

English law, for example,

where you receive very soon that there are quite a lot of

laws that don't seem to have been made by the current

sovereign but seem to have been made by a much older sovereign.

In fact, there's one example is the so called, offenses against

the person act. This was passed in in eighteen sixty one.

Who was the sovereign then,

Queen Victoria was the sovereign then. Okay. But if

people every Saturday night the pubs empty, people get into

fights. A number of people get arrested,

and they're charged under the eighteen sixty one.

Offenses against the person act. Okay. So here's one

problem. If if Laura's just

a populace in the habit of obedience to the sovereign.

And you might say the sovereign,

it's the it's the queen in parliament or the king in

parliament Right? That's the that's the sovereign.

Well, what about the older the older ones?

That would surely have to be the the one. So that's the

first thought. And also on that subject, I mean,

has happened quite recently.

The the monarchy changed the the queen of many years, queen Elizabeth,

died after a very, very lengthy,

Ray. And then immediately her son Charles is now

is now the king, right?

But if if the idea is that the sovereign is the king or

the queen in Parliament, then and and that's and and there's

a habit of obedience in relation to that. Surely,

we'd have to wait for this new habit of obedience to emerge k?

Because but it that's that's not what everybody knew.

As soon as queen Elizabeth died, the moment that she died,

we knew exactly who the sovereign was. It was her son.

So what does that suggest? That's that seems to suggest the the

command isn't a person an entity like like a king or

a queen. It seems to be some underlying rule or standard

that everybody is following that everybody seems to understand

a rule of succession.

So that's one that's one sort of problem with with the

picture that says that law or law is coercive orders

backed by threats issued by a sovereign to a population in

the habit of obedience to the sovereign.

Another sort of problem is with the the idea

that that that the that that law is simply a matter of

orders backed by threats because that

that somehow suggests

some something along the lines of of conditioning, right, rewards,

threats. It It's you could almost apply this to this model

to dog training, right? So you're training a dog.

The dog learns through rewards and through through through

unfavorable reactions to to to to a certain form of behavior.

You know,

you're training the toilet training the puppy or something

along those lines.

You look very cross if they pee inside the house,

something along those those lines. Well,

that's what orders back by threats.

That seems to be a sort of form of conditioning,

but The law seems to be something that we use to

guide our actions.

We seem to say that we have obligations

We're not just obliged to do what the law says.

We have obligations. It's an aspect of reasoning, an aspect

of self self reflection.

And this doesn't seem to be captured in this Austrian idea.

A final a final objection to this this famous Austinian

orders backed by by threats account of what law is.

So it suggests that well actually, a lot of the time, a

lot of laws are not about

orders and coercion at all. Right? Yes.

You might say some criminal laws are like that. Right?

But what about making a will? Or making a contract

or setting up a trust.

Okay?

Is that that's not well captured by the idea that it's

it's it's an order backed by threats. That's that's that's

setting up an opportunity.

The public are told if you want to achieve these ends,

here's how you go about it. Right.

This is what caught this is what what will constitute

validly such such such an such an such a

such a thing as a will or a trust or a contract.

So for all these reasons,

this model seemed seemed to fail and a new one surely was, required.

And I'll in in in the next in the next section,

I'll I'll come on to what the suggested alternative

was to that and and also come back to see how those

who think it's more about morality would respond to this sort of line.