Version: v1, Published online: 1998
Retrieved May 27, 2020, from https://www.rep.routledge.com/articles/overview/law-philosophy-of/v-1
4. Laws and values
One way or another, whether in voluntaristic versions or in those that place more weight on customary or institutional aspects of law, nearly all forms of or approaches to legal positivism have insisted on the strong value-relevance of positive law. The matter of doubt has not been ‘ought laws to be just?’, but whether their being just is a condition of their being genuinely legal. The ‘scientific’ character of pure legal analysis has indeed been contrasted with the exercise of moral judgment or moral sentiment, or the engaging in ideological argumentation, that is involved in the critique of law as unjust or otherwise unsatisfactory from the viewpoint of human needs and aspirations. Some, however, have thought that critique itself can have a scientific or at least an objective basis, grounded in the fundamentals of human nature. Classical utilitarianism and nineteenth-century law reform are a case already noted; they had successors in the ‘jurisprudence of interests’ (see Jhering, R. von; Pound, R.), and, albeit with certain qualifications, in the later twentieth-century ‘economic analysis of law’ (see Law, economic approach to; Coase, R.H.).
The need to subject law to critique is obvious from many points of view, none more urgently than that which takes note of the burdensome impact of legal sanctions on human happiness and liberty. If laws characteristically carry punishments or awards of damages for their infraction, some theory to justify penal and compensatory institutions is called for (see Crime and punishment; Contract law, theories of; Justice, corrective). Whether there are any abstractly stateable limits to the legitimacy of interference with liberty through legal intervention has been another heated debate (see Law and morality).
Nevertheless, the positivists’ claim that they can combine an a-moralistic conceptual analysis of law and its institutions with a readiness for critique of actual laws on moral and political grounds, and with a last-resort readiness to disobey or defy the law when it is unjust to an extreme, has been doubted by some. Gustav Radbruch felt himself driven by his experience of the Nazi years (and also, perhaps, by the implications of the radical voluntarism of Carl Schmitt) to abandon such a claim and to insist on a conceptually necessary minimum of basic justice in anything we can recognize as ‘law’ at all. The interpenetration of equity with law, and the interweaving of ideas of justice, equity and law, can be taken to point to a similar moral (see Justice, equity and law), and idealistic approaches to legal theory give a deeper grounding for such an approach (see Legal idealism).
Brown, Beverley and Neil MacCormick. Laws and values. Law, philosophy of, 1998, doi:10.4324/9780415249126-T001-1. Routledge Encyclopedia of Philosophy, Taylor and Francis, https://www.rep.routledge.com/articles/overview/law-philosophy-of/v-1/sections/laws-and-values.
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