On Law

By John L. Bowman

This is a book about the nature of law and its proposition is law should embody justice-but it does not. It does not because there exists a jurisprudential tug of war today between natural and normative law based on morality and non-natural and descriptive law that claims law is simply a social fact. American jurisprudence, perhaps for the first time in human history was founded on natural law. The Constitution embodied morality derived from the social contract which was derived in part from John Locke who believed the end of law is not to abolish or restrain but to preserve and enlarge freedom. But America is embracing non-natural law and the consequences have been unequal treatment under the law, erosion of the rule of law and injustice in the law. Americas judiciary is in turmoil and this book explains why. It does so by exploring contemporary philosophies of law, important moral theories including the social contract, the nature of justice as well as rights, legal reasoning, punishment, responsibility, procedure and evidence.

• Language: English
• Publisher: AuthorHouse
• Release date: Feb 10, 2014
• ISBN: 9781491858677

John L. Bowman

The author received a Bachelor of Arts degree in 1973 from Whitman College, a Bachelor of Arts degree in philosophy in 1993 from Portland State University, and a Masters of Interdisciplinary Studies degree from Oregon State University in 2010. His areas of study for the master’s degree were philosophy (ethics and theories of the mind) and ancient history. He is the author of numerous books on philosophy, real estate, and politics. He lives in Portland, Oregon where he raised three daughters with his wife Kathy.

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2014 John L. Bowman. All rights reserved.

No part of this book may be reproduced, stored in a retrieval system, or transmitted by any means without the written permission of the author.

Published by AuthorHouse 01/30/2014

ISBN: 978-1-4918-5868-4 (sc)

ISBN: 978-1-4918-5867-7 (e)

Library of Congress Control Number: 2014901959

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TABLE OF CONTENTS

ACKNOWLEDGEMENT

AUTHOR COMMENT

COVER DESCRIPTION

INTRODUCTION

PHILOSOPHIES OF LAW

NATURAL LAW • LEGAL POSITIVISM • LEGAL REALISM • DWORKINISM • CHOOSING A PHILOSOPHY

MORALITY

VIRTUE THEORY • UTILITARIANISM • KANTIANISM • SOCIAL CONTRACT THEORY • OBEYING THE LAW • OBJECTIVITY

THE SOCIAL CONTRACT

THOMAS HOBBES • JOHN LOCKE • DAVID GAUTHIER • ARGUMENTS AGAINST • ARGUMENTS FOR • SOCIAL CONTRACT • NATURAL LAW

JUSTICE

ARISTOTLE • UTILITARIANISM • JOHN RAWLS • JUSTICE

RIGHTS

CHARACTERISTICS OF RIGHTS • WESLEY HOHFELD • RAYMOND WACKS • DEFINING RIGHTS • NON-NATURAL RIGHTS • NEGATIVE AND POSITIVE RIGHTS

LEGAL REASONING

FROM RULES • FROM PRECEDENT

PUNISHMENT

UTILITARIANISM • RETRIBUTIVISM • CAPITAL PUNISHMENT • CONCERNS AND CONSIDERATIONS

RESPONSIBILITY

LEGAL RESPONSIBILITY • SAMARITAN LAWS • INSANITY LAWS • INTENTION • LIABILITY

PROCEDURE AND EVIDENCE

LIMITATIONS • PROCEDURES AND PRINCIPLES

CONCLUSION

ABOUT THE AUTHOR

BOOKS BY JOHN L. BOWMAN

ACKNOWLEDGEMENT

This book, On Law, is a condensed version of my unpublished manuscript The Philosophy of Law. I would like to thank Donald Stark, Esq., J. D. for his valuable contribution to the writing of that manuscript.

AUTHOR COMMENT

On Law is about the nature of the law. This book does not evaluate the law through the lens of a prosecutor who thinks justice is money used for a trial, an attorney who finds justice in winning a case or a judge who tries to balance precedence with his personal conception of justice. Rather, it looks at the law from the perspective of a philosopher who believes that the law ought to be based on justice.

COVER DESCRIPTION

The cover is a photograph of the main portico of the Supreme Court building in Washington, D.C. Carved above the columns is the jurisprudential aspirational inscription Equal Justice Under Law. The question is, does the law in America impart justice? (Cover photo credits to Franz Jantzen, Collection of the Supreme Court of the United States)

INTRODUCTION

[The law should] cause justice to reign over all of us.

—Frédéric Bastiat

The foundation of justice is good faith.

—Marcus Tullius Cicero

This book carefully threads a filipendulous theory of the law through many jurisprudential and philosophic minefields. This thread begins with the proposition that the law ought to be based on justice—which is important because that which can compel, imprison and execute should be fair. But what is justice? In order to answer this question, I explain certain philosophies of the law and then seek to explain the philosophy on which the law should be based. I continue by proposing that morality, or the notion of how we should live, is the source of our concept of justice. But which ethical theory do we then appeal to in order to define justice? To answer this, I describe some principle ethical theories and conclude that a non-theistic form of the social contract theory provides the best answer. Additionally, I explain the social contract theory and conclude that humans derive the concept of justice from it. This means, then, that the law should be based on the social contract theory because it is a naturalistic morality that emanates from our human natures. Finally, this book examines a few manifestations of the social contract theory of law in rights, reasoning, punishment, responsibility, procedure and evidence.

My proposition in On Law is that the law ought to be based on justice because the law’s essential purpose is to promote certain ends—peace, prosperity and human happiness. These ends entail protecting life, liberty and property. Unfortunately, the law does not always entail these ends but rather opinion, sentiment, desire, power, politics, wrongful ideals, practicality, revenge, fashion, religion, compassion, ideology and utility. Such influences in law often distract from its essential purpose and sow discord, revolution, chaos and anarchy.

The history of humankind could be described as people’s aspirations to achieve individual freedom and happiness. The law is many things, but these aspirations explain its evolution. The problem is that the law is often a manifestation of man’s view of what is right at any given point in time. Should it represent collectivistic or individual values, the rights of the majority or the individual, or ought it derive its authority from universals or particulars? These questions about the law and justice ask: What is moral? If we cannot define what is moral, how can we arrive at a definition of justice on which the law ought to be based? On Law explores these questions in depth.

It only seems right that that the law ought to embody justice. But, again, what is justice? The debate over the definition of justice can be traced to ancient relativistic sophist philosophers like Protagoras, who famously said that man is the measure of all things. Does justice derive from man-made law (nomos) or natural law (physis), which has its origins in unchanging nature? The very issue of what laws dispense justice can be seen played out historically in Hammurabi’s Code, canon law’s Decretum, civil law’s Twelve Tables, Justinian’s Code, Napoleon’s Code, common law’s Magna Carta and Year Books and Sir William Blackstone’s Commentaries. I will humbly endeavor to sort out these issues.

PHILOSOPHIES OF LAW

There are four contemporary philosophies of law: natural law, legal positivism, legal realism and, to an extent, Dworkinism (named after philosopher Ronald Dworkin). Natural law is principally normative and cognitive in that it endeavors to make a truth claim on what the law ought to do. Positivistic, realistic and Dworkinian philosophies, called non-natural law theories, are mainly descriptive and non-cognitive because their truth claim is only to describe what the law is. This book evaluates the law from a normative, cognitive perspective because that which can compel ought to embody values and ethics that champion human life, liberty, property and happiness.

Natural Law

Natural law proponents include historic thinkers such as Marcus Tullius Cicero, Thomas Aquinas, John Locke, Sir William Blackstone and Frédéric Bastiat. They all postulated the idea that laws are derived from timeless natural moral laws, which some call God and others call nature. These a priori laws of nature do not exist in books—they embody a morality that precedes and is higher than human law. For all advocates of natural law, morality is a necessary criterion for valid law, and human law is the realization of a higher moral law.

Naturalistic law presupposes we are moral beings who possess reason, which is what binds us legally—we are bound because our reason examined nature. The very concepts of fairness and justice naturally come from human reason and not revelation, intuition, authority, feelings or inclinations.

Cicero believed natural law meant in accordance with reason and wrote that the law and morality are one. Natural laws are a universal and immutable higher law discoverable by reason. Aquinas distinguished between higher (eternal) law and human (temporal) law, which he expressed as lex iniusta non est lex (an unjust