The Need for Jurisprudence
Jurisprudence or most specifically studied and known as the philosophy of law has been very problematic in terms of its actual utility and importance to political scientist, philosopher and students alike. The problems are rooted on the concepts and theories it propose and whether or not these are needed and/or helpful to the establishment and institution of law in school and in society. It is also mind boggling if the study of jurisprudence is necessary in understanding law or if it is a system which deconstructs law to its ancient proponents and reconstructs its use and meaning according to contemporary notions.
In this paper I would like to take a close examination on the problems of jurisprudence through an interpretation of the quote:
`Why do you even bother to learn the so-called law in school? The whole notion of the rule of law is a joke for many reasons. Most importantly, it is silly to say there is the rule of law, because there is really only the rule of men. The judges do whatever they want, dress it up with a bunch of doctrinal gibberish, and try to justify it as the law. And the phrase rule of law is the biggest pile of mumbo jumbo. The only way to get the law on your side is to donate the judges’ political campaigns. `
Through mere introspection, this quote can be broken into statements denoting that law should not be studied since it does not exist virtually but are only tools by which judges or lawmakers use to justify their actions and decisions. Also, that law is man-made and can be changed.
In today’s world, one can see that the laws inscribed in the famous constitution do not cover all the answers to the questions of justice. Several hard cases can be found in legal articles that call for the intervention and interpretation of law by the judge or jurors, making the law seemingly bias in most occasion. Such instances raise doubts as to whether or not law is universal and effective. Being so, Jurisprudence tries to illuminate each side of the case; however being a branch of philosophy it does not give and guarantee specific answer.
This paper would try to show my personal interpretation of the quote stated above, along with my analysis and answers to the questions posted. My interpretation would be based upon how different philosophers would defend and/or rebut the quote, with respect to their writings and philosophy.
The first proposition in the quote is that, ‘law should not be studied in schools’. Whereby the definition of law still remains vague and ambiguous, its presence reflects its importance. Aristotle, in Book V of the Nicomachean Ethics stated that, ‘Laws encourage a person to act in virtuous manner’. This alone warrants the necessity of laws to be taught in the academe, since schools and universities are instituted to educate and train their students to become ‘virtuous’ individual and citizens.
Thomas Aquinas in his book, Summa Theologica, Question 90, reassured that the purpose of law is to command and to forbid, such that with the knowledge of law a person will be able to know what are forbidden and how one should act in a state or a system. It is in schools that knowledge of basic laws is being inscribed to a certain person.
If laws are not known, as Hobbes imply in the Leviathan (Chapter X-XXII), these laws will not have an effect. Thus, it is of outmost important that in order to promulgate a law it must be understood by its subject and to gain a better understanding of the laws and how it works, it must be available in schools and universities. In a contemporary view, Richard Posner, posits that Law and Economics must be studied together for there are several areas in this two that overlaps.
Nevertheless, there are schools of thought in the realm of Philosophy of Law that argue about Laws being ‘inherent’ to man as part of his reason and deliberation. These types of thinkers are known as Natural Law theorist. However, they only pertain to ‘natural laws’ or those type of Laws that man are abiding even without legal validity or even though it is not written down in the Constitution. This type of laws are said to hold moral validity as stated by Oliver Wendell Holmes, Sr. but may be legally invalid. In such instance, if it is true that there are laws that are inherent to man, it remains a must that legal law or those laws that are not inherent to man shall be made known to them. And in my opinion, there is no better way of doing this but through education which happens in schools.
The next proposition is that ‘the rule of law is a joke’. To rule, simply put, is to be followed. To be able to rule is to gain authority. Authority, according to Hobbes, is needed to control the threats of human nature which seeks to dominate other people. In a society a sovereign authority, in Hobbes terms, has a supreme authority among its subject that any act against the sovereign has a corresponding sanction or punishment (Leviathan, Book II, Chapter 17-19).
Nonetheless, the view that the ‘rule of law is a joke’ stem from the claims of legal positivist and legal realist. These groups deny that morality is a determining factor or the foundation for the formulation of legal laws. This being said, legal laws can be immoral, it can be changed or it is not absolute, it is not rooted in nature and it is open to interpretation and amendments.
Hobbes maintains that the Leviathan or that which holds supreme authority or sovereignty can appoint or have judges or ministers that can represent the Leviathan. From this view, Judges and lawmakers possess authority to create and establish laws. Laws become subjective, depending on the judges or on the culture of the lawmakers. In extreme instances, Laws become bias and sometimes discriminatory.
Llewellyn, in his book, ‘A Realistic Jurisprudence’, he asserts that, written laws served only as calculative prediction of what will be the outcome when the judges decide. This comment must be based upon the fact that it is the judges who has the final say or verdict in every case. In this perspective, the rule of law may indeed be a joke. However, Hobbes, Aquinas and Aristotle believe that a law shall be binding, that it is established to benefit and maintain the balance in the society. In a sense, they try to demonstrate that certain laws that come from virtue are absolute and inherent. If so, the rule of law is a necessary, practical and beneficial authority that represents the people and work towards the goal to maintain peace and prosperity.
Following from the above proposition is that ‘there is only the rule of men’. This statement blatantly implies that men are seen as the creator and executioner of law. Aquinas would not like this, since he maintains that all that comes from reason originated from God. In some way, Hobbes also believes that God is the prime mover. Aristotle may agree but still argue about the divine cause. Law is essential on Locke’s property rights that shall serve as a limit to acquiring power derive from private properties.
The necessity of the rule of law in the philosophy of these philosophers somehow illuminates the fact that although there is rule of men it does undermine the presence of the rule of law for there are laws that are necessary for man’s existence. On the other hand, modern and contemporary philosophers assert that it is man and man alone that creates and validates the laws. The rejection for moral validity as a source of the authority of law strengthens this claim.
In a more detailed view of legal realism, Laws are not written letters but the practice of execution and decision making, as stress by Llewellyn. However, even though laws are ascribe to judges and law makers decisions to nature or to God, to a universal moral principle or reason, Law remains a law and it is a set of duties and obligations that a member of any society must follow. Thus, although there might be a rule o f men, if it remains to be binding, to be known to all subjects, to be promulgated, to be virtuous-however that term might subjectively interpreted, then it stands as a Law in its generic term.
The fourth proposition entails that judges do whatever they want and back it up with doctrines that they justify as Laws. This seems to be a legal realist perspective. However, it must be noted that Judges are under specific oaths. The doctrines they use are written legal constitution and rule/s. Although everything boils down to their judgment, still what they do or how they decide is in relation or in connection to the whole schema of legal validity.
This legal validity in Hobbes philosophy comes from the Sovereign or the Leviathan. In Aristotle’s perspective legal validity is devised from the rational interpretation and conventional inauguration made by reasonable citizens (Nicomachean Ethics, Book V-VI). Locke might refer that the judges are merely representative of the people to protect their basic rights ( Second Treatise, Chapter VIII). Nevertheless, legal realist such as Llewellyn will maintain that the law is a plain judicial interpretation of the words written down by past legislators.
On a contemporary sense, in line of Law and Economics, Posner might argue that Judges must look or must base their decision on the maximization of wealth; otherwise the verdict will remain inefficient if not ineffective.
Feminist and critical race theorist would argue in favor of the above proposition citing that, traditional way of judging which is commonly patriarchal or biased to a particular race or group of people has always been the way in which judges arrive in their verdicts.
The final proposition concerned graft and corruption of the judges. If one will believe that judges are indeed corrupt officials one should result to impeachment claims. As Hobbes mentioned, inefficiency of the Leviathan may lead to civil wars and weakening of the Leviathan, in such case a new social contract must be made, if man would like to escape the brutality and war in the state of nature (Leviathan, Book II, Chapter 20-24).
In the same view, Locke suggests that a revolution might be applicable when the government is not properly administering its laws and responsibilities (The Second Treatise of Government, Chapter X). (If government/s as a whole can be replaced then why not the judges). However this needs proof and proper trial. Since the citizens or the governed are the subject of laws, then they have the right to ask for better judges. If it is a fact that the ‘only way to get the law on your side is to donate the judges political campaigns’ then the law is obviously flawed and the Judges does not in practice represent the citizens.
The legal realist will not admit wholly that such conditions are present; however, I fear that they may neither deny that such thing can happen. No doubt that no judge would admit that this alleged bribery exist in reality. Thus, until proven that such condition actually transpire it is hard to point out if such accusation is a valid proposition or a mere hypothetical conclusion that may not have a factual basis.
As a conclusion, Jurisprudence remains cloudy and studying the above quote gives way to new interpretation and information to the scope and reality of the concept of being overridden by the authority of politicians and judges. The subjectivity of law was emphasized such that cases in a certain area may have a different judgment in another area. This scenario has long been foreseen by Aristotle, for he asserts that different constitutions have different interpretation of justice.
In modern day reality, a prominent example is the legalization of homosexual marriages. In United States alone, there are States that approve and accept such union while other States thinks it is immoral. At the end, I believe that the interpretation of Law remains to be subjective and may never be objective everywhere. However the existence of multi cultural cities and divergent countries each becoming another melting pot opens a problem on bias interpretation and heightens the problem of distinct beliefs and judgment to a wider scale that needs to be resolve sooner or later.
Aquinas, Thomas. Summa Theologica. Sophia Institute Press. 2001.
Aristotle. The Politics. Edited by Saunders, trans. By T.A. Sinclair. Penguin Classics. 1982.
Aristotle. The Nicomachean Ethics. Second Edition. Translated by Terence Irwin. Hackett Publishing. 1981.
John Locke. The Second Treatise of Government. Translated by C.B. Mcpherson. Hackett Publishing Company. 1980.
Hobbes, Thomas. Leviathan. Penguin Classics. 1982.
Oliver Wendell Holmes, Sr.The Path of the Law. Kessinger Publishing. 2004.
Karl N. Llewellyn. A Realistic Jurisprudence- The Next Step. 1930.
Posner, R. The Problems of Jurisprudence. Harvard University Press. 2007.