This is the 1st lecture of [[James Orr]]'s [[PA Philosophy of Law]] course on [[Peterson Academy]]. > [!note] Notes restructured as questions → answers → objections. --- ## 0. The framing problem Law makes enormous claims on our lives that we largely don't question: how fast you may drive, how much income is confiscated annually, whether you may build your own house and to what dimensions, what you may say (less constrained in the US thanks to the First Amendment; an increasing concern in Britain and continental Europe), whether you must send your children to school — a decision that looks like a parent's, not a bureaucrat's in Washington or Whitehall. **Why don't we question it?** One cheap answer: because bad things happen if we don't obey. But law seems to be *more* than a command with a deterrent attached. Establishing what that "more" is, is the business of the whole course. **Term:** *Jurisprudence* — from the Latin, simply thinking about law; the philosophy of law. Notably it is not usually compulsory at law school, where you go straight into contract (offer, acceptance, consideration), tort, property, etc. --- ## 1. The central puzzle: the gunman and the tax collector **Hart's thought experiment** (*The Concept of Law*, 1961): a masked gunman points a gun and says "hand over your wallet." The sensible thing is to comply. Now the tax collector says "hand over your money or else." **What, if anything, is the difference?** ### Answer A: There is no difference — **Robert Nozick**, *Anarchy, State, and Utopia* (1974) No relevant difference between the two. The state is organised crime that got out of control and took over: a protection racket demanding a bigger slice every year, on pain of prison. If Nozick is wrong, what exactly distinguishes them? Four candidate answers, three of which fail: ### Answer B: **The tax collector has authority** — the state's machinery is behind him **Objection: circular.** That's a restatement of the intuition, not an explanation. We want to know *in virtue of what* he has authority, and what makes that authority *legitimate*. ### Answer C: **Generality** — tax laws apply universally within the jurisdiction; the gunman is a one-off, just your unlucky night **Objection: not all laws are general.** Some apply to categories of person; some apply to exactly one. A **court order** to pay a fine has your name on it. A **deportation order** is by definition *in personam*. Both carry the full force of law. ### Answer D: **Moral justification** — the taxman's demand is morally justified, the gunman's is not Three objections: 1. We know nothing of the gunman's circumstances; extreme scenarios are imaginable in which he takes himself to have morally justifying reasons. 2. Reasonable citizens can disagree about the morality of laws — how tax revenue is spent is not self-evidently moral. 3. **It begs the question.** We were trying to establish the difference between law and morality. Answering "law involves morality" leaves us with no distinguishing features of either. ### Answer E (Hart's, and the one that survives): **Embeddedness in a system + the internal point of view** What must be in place for the tax collector's demand that is absent for the gunman's? The tax collector is part of **a vast system of rules, procedures, protocols, institutions, and chains of command**, which those inside it and those subject to it accept that they are in. The gunman is embedded in no larger system that has claims on me or confers benefits on my political community. **His only leverage is the gun.** --- ## 2. The power/authority distinction (the conceptual tool underneath all of this) | **Power** | **Authority** | |---|---| | The ability to make others do what you want | The **right** to command others to do what you want | | The gunman has this | The gunman lacks this; law claims it | Law claims *authority*, not merely power. So: **what justifies that claim?** (See §5.) --- ## 3. Hart's internal point of view, developed **External point of view:** a description of behaviour. *People stop at red lights because they know there are consequences if they don't.* **Internal point of view:** how participants actually experience it. *Red light — stop. Green — go.* Reflexive, not calculating whether police are around. Hart's claim: this is far more accurate to how we live inside a rule-system, and it saves us enormous time. **Three arguments for it:** 1. **The desert crossroads.** A red light, nobody for fifty miles, no possible consequences. Hart says stopping is *totally rational* — you are responding to the law in the right way. We do not say the law applies only to crossroads where cars might be around; it has to be consistent, clear, and universal. 2. **Our reaction to violators is normative, not prudential.** We are not shocked because the driver *took an imprudent risk with fines*. We say: he broke the rule. He breached a standard. It is wrong *just by being a breach*, even if the harms the rule exists to prevent didn't in fact arise and he got lucky. 3. **Officials must share it.** Tax officials, police, and government have to accept the laws as binding, not merely enforce them. **Contrast the Mafia:** the enforcer obeys the boss out of fear of what happens if he doesn't — the purely external view. Nobody thinks the Padrino's orders generate *duties*. **Crucial qualification:** the internal point of view **does not require moral approval**. It just is what it is. (This is what keeps Hart a positivist rather than a natural lawyer.) **When does internalisation fail?** Outliers who don't internalise remain anomalous *provided* the system meets certain criteria: - the law is not so absurd in its demands that it loses legitimacy; - the law is not so labyrinthine that it can't be grasped — the **British tax code** runs to some 20,000–24,000 pages, arguably the longest in the world, and arguably no single human being could understand the whole of it. (Contrast Singapore's, absorbable in an afternoon.) This connects to a **natural law principle about transparency**: *ignorantia legis non excusat*, ignorance of the law is no excuse. The other side of that bargain is that law must be transparent, intelligible, graspable, intuitive — such that ignorance *isn't* easy. Complexity therefore erodes authority. --- ## 4. What law is *not* — clearing the ground | Not this | Because | |---|---| | **Moral rules** | It would be odd if the Ten Commandments were bills in Congress. It's a *good* thing most moral behaviour is not policed by courts but handled between citizens in a shared moral culture. | | **Religious rules** | — | | **Social custom** | Not wearing white to a wedding has the force of convention — you've done something wrong — but no legal force. | | **Etiquette** | Correct fork, cutlery placed correctly at the end of a meal: very weak social pressure only. | | **Laws of nature** | Those are *descriptive* accounts of regularities. They don't command, they describe. You can't break the law of gravity. Entirely different use of the metaphor. | | **Predictions** | Law is normative, not factual-predictive. Even when written as "if X then Y," it means *do this, you must do this* — the vocabulary of ought, duty, obligation. | Law, by contrast, **addresses you directly as a responsible agent** — "you must file your return by 5 April"; "you have a right to remain silent" — assuming you are capable of understanding your rights and duties, with mitigation available afterwards. --- ## 5. The gap between law and morality — and it runs both ways ### Direction 1: Law requires what morality forbids - **Fugitive Slave Act (1850, US)** — required Americans to return escaped slaves to their owners. A **valid** law, passed by Congress, with no complaint about the procedures followed. - **Nuremberg Laws (1935)** — the National Socialist regime stripped German Jews of citizenship, barred them from public office, from publishing. - Racial segregation. ### Direction 2: Morality requires what law cannot - **Forgiveness.** Law by definition cannot forgive; it states what should happen to everybody, with a judge free to weigh mitigating circumstances in sentencing. - **Charity, and going above and beyond** — *supererogatory* action in moral philosophy. What we most praise is precisely what exceeds what the legal framework requires. Law cannot command it. ### The resulting dispute: is an unjust law still a law? | **Natural law** | **Legal positivism** | |---|---| | ***Lex iniusta non est lex*** — an unjust law is not a law | The law is just the law; its harmony with morality is a separate question | | Tradition running from **St Augustine to Martin Luther King** | Validity is settled by pedigree and procedure, not content | | Law's authority derives from grounding in principles that transcend all laws: what human beings are, and what conduces to their flourishing as natural beings | We can study those things, but they don't determine legal validity | | If a purported law leads us away from flourishing, it is cut off from the source of its authority — not a law | If we deny this, **we cannot make sense of laws we know to be both immoral and valid** | **The positivist's strongest argument:** the immoral laws *had causal force in the world*. Many books that brilliant German Jews might have written in the mid-1930s went unwritten because of that legislation. Had it been a rant from some local man in a town somewhere, it wouldn't have mattered. The problem is precisely that it **had the force of law**, whether or not it converged with the right thing to do. To say it was never a law is to lose the ability to explain what went wrong. ### The third position: **anarchism** (*an-archē*, zero structure) Hovering in the air, but on the lecturer's view never makes enough sense of itself to earn a place at the table. Claim: law's demand is **always** illegitimate — an imposition on my own moral sense, my reason, my capacity to work out my duty in a given scenario. Objections: 1. Might conceivably work in a small community of very high-IQ libertarians; scale it to tens of millions each devising a private criminal code and it collapses. 2. **Law re-emerges immediately.** Any lawless society that wants to *remain* a society will very quickly generate agreements, codes, and convergences — i.e. law. 3. **Is that freedom worth having?** Drive anywhere, any speed, no lights, no signs. The benefits law confers overwhelmingly compensate for waiting four interminable minutes at a desert crossroads. --- ## 6. What justifies law's claim to authority? Four candidate theories ### 1. Consent - *Express:* oaths sworn in court, at naturalisation ceremonies. - *Tacit:* born here, haven't left in thirty years, accepting the benefits — so the state may reasonably infer acceptance of the costs and consequences. - **Appeal:** attractive to the Enlightenment, rationalist, secular mind — it preserves autonomy, independence, and the use of our own reason to determine right and wrong; it connects to **contract theory**, central for many liberal philosophers. **Objections (the lecturer thinks this one fails):** - Consent is almost never expressed, and tacit consent is extremely difficult to measure. - **Nobody consented to be born where they were born.** There is no confirmation or baptism into the national family. - **Voting isn't consent.** I may use my vote to express *dissent*; if my side loses I am ruled by people I expressly did not consent to. - **Consent doesn't confer legitimacy anyway.** If I consent to be enslaved, that does not make slavery legitimate. Consenting to an immoral act doesn't make it acceptable even with respect to the consenter. ### 2. Democratic authority Not quite consent — the *messy* consent emerging from democratic processes. **Appeal:** accountability; equality, one person one vote. **Objection:** the **tyranny of the majority** — through sheer force of numbers the majority can always dictate terms to, or oppress, a dissenting minority. ### 3. The common good / flourishing Recent literature: **Patrick Deneen** (Notre Dame) and **Adrian Vermeule** (Harvard) — *common-good constitutionalism*. Flourishing conceived in the round, not merely economically: what is it for a political community, and for individuals within it, to flourish? **Appeal:** law is the machine that enables maximal flourishing — as much justification as we need for its authority over us. And the gunman is plainly neither aiming at the common good nor embedded in a system oriented toward it. ### 4. Coordination How do you coordinate tens of millions of people in complex scenarios at scale? **Driving** is the paradigm: an extraordinary web of laws, rules, etiquette, and highway code lets you cross a vast distance, interacting at speed with hundreds of strangers in metal boxes, without even thinking about it — because virtually everyone obeys. The **left/right** case is the sharpest illustration: there is nothing whatever immoral about driving on the left, or on the right. But there *is* something wrong with driving on the left **when you're in America**. The content is arbitrary; what matters is that the law settles it, publicly and clearly, so everyone has the rule everyone needs. **Key idea: limits can liberate.** Structure and limitation are what make the freedom of driving where you like possible in the first place. **Objection/limit acknowledged in the lecture:** coordination doesn't really *explain obligation*. It shows law's power and utility rather than grounding its authority. --- ## 7. The deepest puzzle: content-independent reasons **Ordinary moral reasons are content-dependent.** I see a drowning child and dive in *because it saves the child's life* — no further reason is needed. I keep my promise *because that sustains trust*. The reason lives in the content of the act. **Law claims something different:** do X *regardless* of whether you have independent reasons. You may not understand the reasons; you may disagree with them; it's irrelevant. Do it. **Objection:** you never accept reasons like that in any other area of your life. **Answer:** "It's the law" is *itself* a reason for action — and a good enough one. I may find the law stupid, be unable to identify a single reason in its content, and still be acting rationally in obeying it. Why must I drive on the left? There's no moral difference. **Because very often the content is irrelevant and the conformity is the point.** **What this buys us:** law forecloses the alternative — people leaping out of their cars at crossroads to swap arguments about what the traffic regulations *ought* to be. Law takes that away and clarifies: this is it, obey. The libertarian impulse resents this, but by everyone shutting up and obeying across a wide range of laws, collective life is overwhelmingly better than it would otherwise be. (Again: **law liberates by constraining**.) --- ## 8. Background taxonomy (used later in the course) **Criminal vs civil** - *Criminal:* a "vertical" wrong against the state and the people as a whole. - *Civil:* breaches that are **unlawful without being illegal** — no crime committed. Tort (e.g. trespass) covers civil wrongs that are non-contractual, with systems of liability and obligation the courts recognise. - Consequence: two trials for one set of facts. **O. J. Simpson** (mid-1990s) — the criminal trial, then a separate civil suit brought by the family of the deceased. - As stated in the lecture: signs reading "Trespassers will be prosecuted" are muddled, since prosecution is for criminal offences. **Civil escalates into criminal — the crucial mechanism** Refuse to pay damages → judge issues a court order → persist in refusing → **contempt of court**, which *is* a crime → prison. This was **[[Jordan Peterson]]'s point on Canadian television over Bill C-16 (2017–18).** Told that non-compliance was merely a civil matter, just a small fine, he asked immediately: *what happens if I don't pay the fine — and if I persistently refuse, out of conscience?* The interviewer had no answer, because the answer is prison. Apparently soft guidance turns out to have teeth once you refuse to participate in that corner of the legal web of obligations. **Other divisions:** contract, tort, real property, constitutional law, and **equity and trusts** — distinctive to the English-speaking world, which has a very different legal tradition from continental Europe, a difference exported by each to the territories they colonised. --- ## 9. Where this is going **Lecture 2: Sophocles' *Antigone*.** Antigone against Creon, tyrant of Thebes, dramatising the conflict between the law of the state — the law of the *polis* — and (question mark) **a higher law**. This maps the two great traditions the course will follow: natural law and legal positivism. --- ## 10. Vocabulary - **Jurisprudence** — philosophy of law; thinking about law - ***Lex iniusta non est lex*** — an unjust law is not a law (natural law slogan) - ***Ignorantia legis non excusat*** — ignorance of the law is no excuse (and its corollary: law must be intelligible) - **Power / authority** — ability to make others comply / the *right* to command - **Internal vs external point of view** — the participant's normative stance vs the observer's behavioural description - **Supererogatory** — morally praiseworthy action beyond what is required - **Content-independent reason** — a reason for acting that doesn't derive from the merits of the act itself - **In personam** — directed at a specific individual - ***An-archē*** — without rule/structure; root of "anarchism" --- ### Minor points worth checking before repeating them - The American JD is normally **three** years, not four. - *Lex iniusta non est lex* is a later scholastic compression; Augustine's own formulation in *De Libero Arbitrio* is closer to "that which is not just seems to be no law at all." Aquinas is the more standard anchor for the doctrine. - Trespass **can** be criminal in some jurisdictions (aggravated trespass in England and Wales; criminal trespass in many US states), so the "Trespassers will be prosecuted" sign isn't always confused — though the general civil/criminal point stands. --- Back to: [[PA Philosophy of Law]] Next Lecture: [[The Source of Law]]