Normative Jurisprudence

Normative jurisprudence involves normative, evaluative, and otherwise prescriptive questions about the law.

Freedom and the Limits of Legitimate Law

Laws limit human autonomy by restricting freedom. (…)

John Stuart Mill provides the classic liberal answer in the form of the harm principle:

“[T]he sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number is self-protection. The only purpose for which power can rightfully be exercised over any member of a civilised community against his will is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant. Over himself, over his own body and mind, the individual is sovereign” (Mill 1906, pp. 12-13).

Legal Moralism

Legal moralism is the view that the law can legitimately be used to prohibit behaviors that conflict with society’s collective moral judgments even when those behaviors do not result in physical or psychological harm to others. (…)

The most famous legal moralist is Patrick Devlin, who argues that a shared morality is essential to the existence of a society:

“[I]f men and women try to create a society in which there is no fundamental agreement about good and evil they will fail; if, having based it on common agreement, the agreement goes, the society will disintegrate. For society is not something that is kept together physically; it is held by the invisible bonds of common thought. If the bonds were too far relaxed the members would drift apart. A common morality is part of the bondage. The bondage is part of the price of society; and mankind, which needs society, must pay its price.” (Devlin 1965, p. 10).

Legal Paternalism

Legal paternalism is the view that it is permissible for the state to legislate against what Mill calls “self-regarding actions” when necessary to prevent individuals from inflicting physical or severe emotional harm on themselves. As Gerald Dworkin describes it, a paternalist interference is an “interference with a person’s liberty of action justified by reasons referring exclusively to the welfare, good, happiness, needs, interests or values of the person being coerced” (G. Dworkin 1972, p. 65).

The Obligation to Obey Law

Natural law critics of positivism (for example, Fuller 1958) frequently complain that if positivism is correct, there cannot be a moral obligation to obey the law qua law (that is, to obey the law as such, no matter what the laws are, simply because it is the law). As Feinberg (1979) puts the point:

“The positivist account of legal validity is hard to reconcile with the [claim] that valid law as such, no matter what its content, deserves our respect and general fidelity. Even if valid law is bad law, we have some obligation to obey it simply because it is law. But how can this be so if a law’s validity has nothing to do with its content?”

Law and Economics

The law and economics movement argues for the value of economic analysis in the law both as a description about how courts and legislators do behave and as a prescription for how such officials should behave. The legal economists, led by Richard Posner, argue that the content of many areas of the common law can be explained in terms of its tendency to maximize preferences:

“[M]any areas of law, especially the great common law fields of property, torts, crimes, and contracts, bear the stamp of economic reasoning. It is not a refutation that few judicial opinions contain explicit references to economic concepts. Often the true grounds of decision are concealed rather than illuminated by the characteristic rhetoric of judicial opinions. Indeed, legal education consists primarily of learning to dig beneath the rhetorical surface to find those grounds, many of which may turn out to have an economic character” (Posner 1992, p. 23).

Posner subscribes to the so-called efficiency theory of the common law, according to which “the common law is best (not perfectly) explained as a system for maximizing the wealth of society” (Posner 1992, p. 23).

Author: Kenneth Einar Himma

Resources

See Also

• Legal Biography
• Legal Traditions
• Historical Laws
• History of Law

Further Reading

• Ancient Greek Philosophy and Law in the Oxford International Encyclopedia of Legal History (Oxford University Press)
• The Oxford Encyclopedia of American Political and Legal History (Oxford University Press)
• Ancient Greek Philosophy and Law in the Dictionary of Concepts in History, by Harry Ritter
• A Short History of Western Legal Theory, by John Kelly

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