Foundations

What is law? And why does this question matter?

To know who has legal authority and how to interpret law, we also need to know how legal authority and interpretive methodologies are established in the first place.

We must know these philosophical truths about the nature of law itself.

In other words, to answer the question what is the law?, we need first to answer what is law?

Put differently, what establishes the authoritative status or foundation of law?

In Antigone, Creon issues his edict. He is the legally constituted authority of Thebes, i.e., the king. He is king because the citizens treat his ascension to the throne as a lawful part of legal custom and practice in the polity.

Or, perhaps he is king because his ascension to throne is also ultimately grounded in moral authority or foundation, such as divine command or natural law.

Thus, we have 2 different answers to what counts as law’s foundation:

1. Positive law – what lawmakers say, do, intend, i.e., “social facts”
2. Natural law – social facts + moral facts, i.e., morally sound reasoning

Applied to Creon, his edict is legally binding because (1) he issued it as king, and/or (2) moral reasoning supports it.

This concerns the necessary properties of law – the nature of law itself.

But this philosophical concern has practical implications too: who has authority and how do they interpret law?

At bottom it is a question of justifying legal authority.

To determine the content of Creon’s law, it is not enough to say that he’s the king and the king makes law and the king says what the law means.

We need also to show one is justified in ascribing legal authority to both the king and his interpretation of the law.

If positivists are right, then all we do is conduct sociogical inquiry: what do law makers do, say, think, intend? That is law, and that is all there is to law.

But if moral facts matter too, then we can’t determine the law until we engage in moral inquiry. This is natural law’s challenge to positivism.

Again, this debate centers on the necessary features of law in analytical terms, but the answer one chooses has practical implications for disputes about both legal authority (who makes law) and interpretation (what does law mean).

For another perspective, ask yourself, “How is law possible?”

What or who serves as foundational authority to make law?

Either an ultimate norm or body is authorized to make law. Which came first? Either someone with authority made law or an underlying norm granted the authority to do so. It is the classic “chicken and the egg” conundrum.

If we don’t solve it, we have an infinite regress of questioning who or what authorized the law, the law that allowed for that law, the law that allowed for the law that . . . and on and on . . . .

One answer for an ultimate norm is god’s divine rule under traditional natural law.

Secular moral-political theory is the modern equivalent: societal norms in democratic society grant authority to make the constitution, for example, in modern constitutional republics.

These two – god and moral philosophy – underlie the natural law view.

What about the positivist view?

Here again, two main candidates for the ultimate source:

(1) Brute force or (2) certain rules society agrees to follow to make laws, again, not because they are morally obligated to do so, but simply because they do. Period.

This brings us to the is/ought fallacy: just because the king has power to issue the edict doesn’t mean he should issue the edict.

Normative statements can never be deduced merely from descriptive ones.

This is a central problem for positivists.

But natural law faces its own trouble – the problem of evil law

How does natural law account for evil legal systems (Nazis or Stalinist Russia) if all law is grounded in morality? There are no morally illegitimate laws according to natural law.

Either way – natural or positive law – we must confront serious inadequacies.

How do we resolve them?