Traditionally Western philosophers have assumed that the questions in philosophy of law are merely conceptual. The question is what is the meaning of ‘law’. In this course, I will argue that the conceptual question rests on a normative or ethical one.  To say what ‘law’ is we have to talk about why law is right or wrong (and what kinds of laws are right or wrong).  This position is something like the old discredited theory of natural law. However, I will try to show that we can develop it in a way that is compatible with the key insights of positive and realist legal theory and escapes their main criticisms.

Our key question will, in fact, be one that is quite timely for Hong Kong as we work to integrate a British tradition with the legal system of China.  Why should we choose to have the rule of law and what does it mean to choose it? The question of definition will be absorbed in the normative political theory. We are not merely asking “what is ‘law’?” but “what is law such that we can justify the rule of law?” And we will see that that question is also involved in the question, “how should we interpret law?”

I will argue (following Dworkin) that a normative theory of law is part of an overall political-moral theory. Other theories of law make most sense from some particular point of view within a norm justified political system, e.g., as judge, lawyer advising a client, a legislator, a policeman, etc. The overall theory answers the questions about the appropriate attitude for those “official” political roles and for the role of a citizen in a political system under rule of law.

We can think of a theory of law (following Dworkin), then, on the model we use for the separation of powers in government: legislative, executive and judicial (Legco, The Chief Executive/Exco/Police, and the courts).  A theory of law is a theory about the standards that we should apply to these different governing functions. It is also a theory about why each different organ is competent or appropriate to make certain types of decisions, institutional competence. We distinguish that from institutional standards and method.  

First, in legislative theory, we are interested in why a legislature, as it is constituted, is the appropriate or competent body to make new laws. Is it more competent if elected rather than appointed? Why?  Why not a body of scholars or wise social (and natural) scientists?  What moral-political theory justifies democratically elected legislators but not judges?  These are questions of institutional competence.

After settling who should be passing legislation, we can ask, “What principles and standards should a legislator use in deciding whether or not to vote for (pass) a proposed law?” Should she think only about the interests (or views) of her voters? Of the community as a unit? Of the world and all the people in it? Should she apply moral considerations or address only the consequences for her district? What moral considerations or consequences? And so forth. These are questions of legislative justice–what laws should legislators make.

Theory of adjudication (Judging) is where much of philosophy of law tends to focus.  Again we can ask questions about competence. What kinds of decisions should judges make (and which decisions should they avoid making?) Why should judges, people with legal training and experience, appointed rather than elected, with long tenure and job security, be making these decisions. (Or conversely, why would we want people making these decisions to have long tenure, be trained in the legal profession, not be elected etc.?)

Then there is the parallel question of standards guiding those decisions. What considerations should guide their decision-making? Should they use moral considerations or political consequences? Which moral considerations? Those of the community or their own? These are questions of adjudicative justice or what Dworkin calls theory of controversy in the law. How do we decide on the interpretation of law?

This kind of theory is important to Hong Kong when we consider the effect of having the NPC be the final court of appeal for interpretation of the basic law. What does that entail about the purpose of interpreting the basic law? Does it follow that the Beijing leadership is inevitably right about what the Basic Law says? Would it be important to have a Highest Court of Appeal in Hong Kong? Why go above it?

The third area is enforcement and implementation of law—the executive function of government.  Again we can distinguish between theory of competence and standards. Should the chief executive be appointed or elected?  Why? What makes one procedure produce someone who is more competent for this role?  Is it for the same reason as for the legislature? Why not, then, elect Exco, and the policy secretaries, and the heads of the civil service?  What kind of people should be in those posts and to whom must they answer.  What standards of training should we require of police officers? Etc.

 Here again, we can speak of standards too, because the execution of law always involves choices.  Should the police officer give me a ticket or a warning when I go 62 Kilometers per hour? The police commissioner cannot give every violation of some law equal priority–how does he decide how much manpower to put on drug enforcement and on hawker patrol and supervision of demonstrations? Do we have to enforce all laws all the time? What about victimless crimes?  What about things that almost everyone does and most get away with? What about crimes that unfairly affect only one sex or race? These are questions in the normative theory of enforcement.

However, in this area, we have a new aspect of the theory because this is where the law meets the ordinary citizen. Dworkin calls this the theory of compliance. The main question of competence here is why animals, children and the mental ill are not regarded as subject to or punishable by the law. What is it about us that gives us legal responsibilities? Why is there an insanity defense?

A theory of compliance also has a normative side. Should we obey the law? No matter what it says??  When should we disobey laws?  Is there a difference between civil disobedience and conscientious objection?  Should we sometimes deliberately disobey laws and seek to be arrested?

So, our theory of law will be much more than merely a question like “Define ‘law’.”  We are in effect reconstructing the political and moral theory around the goal of a justified rule of law. We will see that political and ethical theory are important to settling questions about “What is the law?”  The conceptual question rests on the ethical one.

Unfortunately, Western philosophers have seldom directly faced these problems, because all the way back to Plato (arguably back to the dawn of Middle-Eastern or Indo-European civilization), they assumed that the rule of law is the essence of government and self-evidently right.  We are in a particularly interesting situation here because Chinese philosophy is one place where law was intensely controversial. Confucius famously opposed law and the Legalist-Confucian 禮法debate was central in ancient China.  Let us look at Confucius’ reasons for opposing the rule of law. 

   子 曰 ﹕ 道 之 以 政 ； 齊 之 以 刑 ； 民 免 而 無 恥 。 道 之 以 德 ； 齊 之 以 禮 ； 有 恥 且 格 。

We can reconstruct a lot about Confucius’ argument from this short passage, especially if we bring in the link with some of his other attitudes about government. Confucius is certainly in favor of order and harmony in society.  His opposition here comes because he doubts that the threat of punishment is the most effective way to achieve that.  One of the contrasts between Chinese a Western ethical and political theory comes in their respective theories of human nature. Western political thought (a little like the  法家in China) had a pessimistic view of human nature–as evil. (In the West, this comes partly from the Christian doctrine of original sin.) Confucius thought society was natural because humans have tendencies (capaci­ties) to absorb systems of evaluation. We naturally tend to emulate our parents and social leaders and strive to be accepted as morally competent. 

Of course, we also have some tendency to selfishness as well.  The two tendencies are the focus of Confucian filial training.  The point of such training is to strengthen the natural social and moral tendencies and to control the selfish tendencies. Given this natural goal and implied role of social institutions, such as the family, law seems a shortsighted way to get order. If you threaten people with punishment whenever they do something wrong, they will refrain from doing it, but for the wrong reason. The threat exercises and thus strengthens the tendency to think in terms of self-interest. It doesn’t make us see the thing as wrong but as dangerous to us. So, although we obey the law, we don’t develop the character that is really necessary for social order.

To understand why, we must look at another aspect of Confucius’ opposition to law–his worries about glibness and argument. This is seen more often in the arguments of other Confucians because it affects their status in society. This issue concerns interpretation and access to the code that guides us.  If the code is 禮li^ritual then Confucians are the authorities on what it means. If the code is an open, public, promulgation, they have no special status or authority. So people can argue on an even footing with the officials about whether or not they have violated an explicitly formulated law. This is called litigation and Confucius said:

子 曰 ﹕  聽 訟 吾 猶 人 也 。 必 也 使 無 訟 乎 。

Here other ancient Chinese philosophers disagreed. The Mohists (墨家), Daoists (道家) and Legalists (法家) were not interested in letting Confucians have all the interpretive power and high official status. They thought it might be a good thing to have people understand the rules that governed them and have some appeal against the Confucian magistrate when his intuition disapproved of them, e.g., declare them bad although they had never clearly violated any explicit law. If the laws are clear and explicit then people will be able to avoid punishment. If they require the intuition of a cultivated Confucian scholar, then they will fear the officials.

The two concerns came together for Confucius when you think how the natural tendency to selfishness in the face of the threat of punishment would value glib speakers. If someone from a village were arrested and came back unscathed because he succeeded in showing that what he did was not against the law, he would be regarded as highly successful.

The next time I am arrested, I’m likely to go ask him how he did it and promise to pay him some money if he will do it for me. Thus, he exposes another “loophole” in the formal public law which has to be filled by reformulating it. Inevitably, it will take someone as clever as he is to fix the loophole and so the laws become more complicated.

They eventually fill whole libraries with books of laws written by lawyers that only lawyers can understand.  We pay all of them enormous salaries and in the end, we are not safer on the streets because we have society of selfish unprincipled citizens. In the end, you still don’t have order.

Confucius’ argument gives us a set of interesting questions to consider. It is strongest against punishment and weaker on the interpretive issue. Does choosing law entail choosing punishment?  If so, it is a good reason against it because punishment is an evil. Confucius’ argument surely shows that punishment is also a self-defeating strategy for achieving a long-term social order.

Add to that the cost to a developing country of a whole class of well paid professionals who do not produce a handful of grain or silk or other economic good. The rule of law and its army of lawyers look like a luxury that such a country cannot afford.