Mahkamah Konstitusi

Mahkamah Konstitusi adalah salah satu kekuasaan kehakiman di Indonesia. Sesuai dengan UUD 1945 (Perubahan Ketiga), kekuasaan kehakiman di Indonesia dilakukan oleh Mahkamah Agung dan Mahkamah Konstitusi.

Kewajiban dan wewenang

Menurut Undang-Undang Dasar 1945, kewajiban dan Wewenang Mahkamah Konstitusi adalah:

* Berwenang mengadili pada tingkat pertama dan terakhir yang putusannya bersifat final untuk menguji Undang-Undang terhadap Undang-Undang Dasar, memutus sengketa kewenangan lembaga negara yang kewenangannya diberikan oleh UUD 1945, memutus pembubaran partai politik, dan memutus perselisihan tentang hasil Pemilihan Umum
* Wajib memberi putusan atas pendapat Dewan Perwakilan Rakyat mengenai dugaan pelanggaran oleh Presiden dan/atau Wakil Presiden menurut UUD 1945.

Ketua Mahkamah Konstitusi

Ketua Mahkamah Konstitusi dipilih dari dan oleh Hakim Konstitusi untuk masa jabatan 3 tahun. Saat ini Ketua Mahkamah Konstitusi dijabat oleh Prof. Dr. Jimly Asshiddiqie, S.H, pada masa bakti 2006-2009 (masa jabatan kedua kalinya), disumpah pada tanggal 22 Agustus 2006.

Hakim Konstitusi

Mahkamah Konstitusi mempunyai 9 Hakim Konstitusi yang ditetapkan oleh Presiden. Hakim Konstitusi diajukan masing-masing 3 orang oleh Mahkamah Agung, 3 orang oleh Dewan Perwakilan Rakyat, dan 3 orang oleh Presiden. Masa jabatan Hakim Konstitusi adalah 5 tahun, dan dapat dipilih kembali untuk 1 kali masa jabatan berikutnya.

Hakim Konstitusi Periode 2003-2008 adalah:

1. Jimly Asshiddiqie
2. Mohammad Laica Marzuki
3. Abdul Mukthie Fadjar
4. Achmad Roestandi
5. H. A. S. Natabaya
6. Harjono
7. I Dewa Gede Palguna
8. Maruarar Siahaan
9. Soedarsono

Sejarah

Sejarah berdirinya lembaga Mahkamah Konstitusi diawali dengan Perubahan Ketiga UUD 1945 dalam Pasal 24 ayat (2), Pasal 24C, dan Pasal 7B yang disahkan pada 9 November 2001. Setelah disahkannya Perubahan Ketiga UUD 1945, maka dalam rangka menunggu pembentukan Mahkamah Konstitusi, MPR menetapkan Mahkamah Agung menjalankan fungsi MK untuk sementara sebagaimana diatur dalam Pasal III Aturan Peralihan UUD 1945 hasil Perubahan Keempat.

DPR dan Pemerintah kemudian membuat Rancangan Undang-Undang tentang Mahkamah Konstitusi. Setelah melalui pembahasan mendalam, DPR dan Pemerintah menyetujui secara bersama Undang-Undang Nomor 24 Tahun 2003 tentang Mahkamah Konstitusi pada 13 Agustus 2003 dan disahkan oleh Presiden pada hari itu. Dua hari kemudian, pada tanggal 15 Agustus 2003, Presiden mengambil sumpah jabatan para hakim konstitusi di Istana Negara pada tanggal 16 Agustus 2003.

Ketua Mahkamah Konstitusi RI yang pertama adalah Prof. Dr. Jimly Asshiddiqie SH. Guru besar hukum tata negara Universitas Indonesia kelahiran 17 April 1956 ini terpilih pada rapat internal antar anggota hakim Mahkamah Konstitusi tanggal 19 Agustus 2003.
READ MORE - Mahkamah Konstitusi

Pengadilan Militer Utama

Pengadilan Militer Utama merupakan badan pelaksana kekuasaan peradilan di bawah Mahkamah Agung di lingkungan militer yang bertugas untuk memeriksa dan memutus pada tingkat banding perkara pidana dan sengketa Tata Usaha Angkatan Bersenjata yang telah diputus pada tingkat pertama oleh Pengadilan Militer Tinggi yang dimintakan banding.

Selain itu, Pengadilan Militer Utama juga dapat memutus pada tingkat pertama dan terakhir semua sengketa tentang wewenang mengadili antar Pengadilan Militer yang berkedudukan di daerah hukum Pengadilan Militer Tinggi yang berlainan, antar Pengadilan Militer Tinggi, dan antara Pengadilan Militer Tinggi dengan Pengadilan Militer.

Kedudukan

Pengadilan Militer Utama berada di ibu kota negara yang daerah hukumnya meliputi seluruh wilayah negara Republik Indonesia. Pengadilan Militer Utama melakukan pengawasan terhadap penyelenggaraan peradilan di semua lingkungan Pengadilan Militer, Pengadilan Militer Tinggi, dan Pengadilan Militer Pertempuran di daerah hukumnya masing-masing.

Susunan Persidangan

Dalam persidangannya, Pengadilan Militer Utama dipimpin 1 orang Hakim Ketua dengan pangkat minimal Brigadir Jenderal atau Laksamana Pertama atau Marsekal Pertama, kemudian 2 orang Hakim Anggota dengan pangkat paling rendah adalah Kolonel yang dibantu 1 orang Panitera (minimal berpangkat Mayor dan maksimal Kolonel).
READ MORE - Pengadilan Militer Utama

Pengadilan Militer Tinggi

Pengadilan Militer Tinggi merupakan badan pelaksana kekuasaan peradilan di bawah Mahkamah Agung di lingkungan militer yang bertugas untuk memeriksa dan memutus pada tingkat pertama perkara pidana yang terdakwanya adalah prajurit yang berpangkat Mayor ke atas.

Selain itu, Pengadilan Militer Tinggi juga memeriksa dan memutus pada tingkat banding perkara pidana yang telah diputus oleh Pengadilan Militer dalam daerah hukumnya yang dimintakan banding.

Pengadilan Militer Tinggi juga dapat memutuskan pada tingkat pertama dan terakhir sengketa kewenangan mengadili antara Pengadilan Militer dalam daerah hukumnya.
READ MORE - Pengadilan Militer Tinggi

Pengadilan Tata Usaha Negara

Pengadilan Tata Usaha Negara (biasa disingkat: PTUN) merupakan sebuah lembaga peradilan di lingkungan Peradilan Tata Usaha Negara yang berkedudukan di ibu kota kabupaten atau kota. Sebagai Pengadilan Tingkat Pertama, Pengadilan Tata Usaha Negara berfungsi untuk memeriksa, memutus, dan menyelesaikan sengketa Tata Usaha Negara.

Pengadilan Tata Usaha Negara dibentuk melalui Keputusan Presiden dengan daerah hukum meliputi wilayah Kota atau Kabupaten.

Susunan Pengadilan Tata Usaha Negara terdiri dari Pimpinan (Ketua PTUN dan Wakil Ketua PTUN), Hakim Anggota, Panitera, dan Sekretaris
READ MORE - Pengadilan Tata Usaha Negara

Visum et repertum

Visum et repertum disingkat VeR adalah keterangan tertulis yang dibuat oleh dokter atas permintaan penyidik yang berwenang mengenai hasil pemeriksaan medik terhadap manusia, baik hidup atau mati ataupun bagian atau diduga bagian tubuh manusia, berdasarkan keilmuannya dan di bawah sumpah, untuk kepentingan peradilan.

Jenis Visum et repertum

Jenis VeR pada umumnya adalah:

* VeR perlukaan (termasuk keracunan)
* VeR kejahatan susila
* VeR jenazah
* VeR psikiatrik

[sunting] Lima bagian tetap VeR

Ada lima bagian tetap dalam laporan Visum et repertum, yaitu:

* Pro Justisia. Kata ini diletakkan di bagian atas untuk menjelaskan bahwa visum et repertum dibuat untuk tujuan peradilan. VeR tidak memerlukan materai untuk dapat dijadikan sebagai alat bukti di depan sidang pengadilan yang mempunyai kekuatan hukum.
* Pendahuluan. Kata pendahuluan sendiri tidak ditulis dalam VeR, melainkan langsung dituliskan berupa kalimat-kalimat di bawah judul. Bagian ini menerangkan penyidik pemintanya berikut nomor dan tanggal, surat permintaannya, tempat dan waktu pemeriksaan, serta identitas korban yang diperiksa.
* Pemberitaan. Bagian ini berjudul "Hasil Pemeriksaan", berisi semua keterangan pemeriksaan. Temuan hasil pemeriksaan medik bersifat rahasia dan yang tidak berhubungan dengan perkaranya tidak dituangkan dalam bagian pemberitaan dan dianggap tetap sebagai [[rahasia kedokteran].
* Kesimpulan. Bagian ini berjudul "kesimpulan" dan berisi pendapat dokter terhadap hasil pemeriksaan.
* Penutup. Bagian ini tidak berjudul dan berisikan kalimat baku "Demikianlah visum et repertum ini saya buat dengan sesungguhnya berdasarkan keilmuan saya dan dengan mengingat sumpah sesuai dengan kitab undang-undang hukum acara pidana/KUHAP".

Dasar hukum

Dalam KUHAP pasal 186 dan 187.

* Pasal 186: Keterangan ahli adalah apa yang seorang ahli nyatakan di sidang pengadilan.
* Pasal 187(c): Surat keterangan dari seorang ahli yang dimuat pendapat berdasarkan keahliannya mengenai sesuatu hal atau sesuatu keadaan yang diminta secara resmi daripadanya.

Kedua pasal tersebut termasuk dalam alat bukti yang sah sesuai dengan ketentuan dalam KUHAP.
READ MORE - Visum et repertum

Pengadilan Tinggi Tata Usaha Negara

Pengadilan Tinggi Tata Usaha Negara (biasa disingkat: PTTUN) merupakan sebuah lembaga peradilan di lingkungan Peradilan Tata Usaha Negara yang berkedudukan di ibu kota Provinsi. Sebagai Pengadilan Tingkat Banding, Pengadilan Tinggi Tata Usaha Negara memiliki tugas dan wewenang untuk memeriksa dan memutus sengketa Tata Usaha Negara di tingkat banding.

Selain itu, Pengadilan Tinggi Tata Usaha Negara juga bertugas dan berwenang untuk memeriksa dan memutus di tingkat pertama dan terakhir sengketa kewenangan mengadili antara Pengadilan Tata Usaha Negara di dalam daerah hukumnya.

Pengadilan Tinggi Tata Usaha Negara dibentuk melalui Undang-Undang dengan daerah hukum meliputi wilayah Provinsi. Susunan Pengadilan Tinggi Tata Usaha Negara terdiri dari Pimpinan (Ketua PTTUN dan Wakil Ketua PTTUN), Hakim Anggota, Panitera, dan Sekretaris
READ MORE - Pengadilan Tinggi Tata Usaha Negara

Pengadilan Tinggi Agama

Pengadilan Tinggi Agama merupakan sebuah lembaga peradilan di lingkungan Peradilan Agama yang berkedudukan di ibu kota Provinsi. Sebagai Pengadilan Tingkat Banding, Pengadilan Tinggi Agama memiliki tugas dan wewenang untuk mengadili perkara yang menjadi kewenangan Pengadilan Agama dalam tingkat banding.

Selain itu, Pengadilan Tinggi Agama juga bertugas dan berwenang untuk mengadili di tingkat pertama dan terakhir sengketa kewenangan mengadili antar Pengadilan Agama di daerah hukumnya.

Pengadilan Tinggi Agama dibentuk melalui Undang-Undang dengan daerah hukum meliputi wilayah Provinsi. Susunan Pengadilan Tinggi Agama terdiri dari Pimpinan (Ketua dan Wakil Ketua), Hakim Anggota, Panitera, dan Sekretaris
READ MORE - Pengadilan Tinggi Agama

Pengadilan Agama

Pengadilan Agama (biasa disingkat: PA) merupakan sebuah lembaga peradilan di lingkungan Peradilan Agama yang berkedudukan di ibu kota kabupaten atau kota.

Sebagai Pengadilan Tingkat Pertama, Pengadilan Agama memiliki tugas dan wewenang untuk memeriksa, memutus, dan menyelesaikan perkara-perkara antara orang-orang yang beragama Islam di bidang:

* perkawinan
* warisan, wasiat, dan hibah, yang dilakukan berdasarkan hukum Islam
* wakaf dan shadaqah
* ekonomi syari'ah

Pengadilan Agama dibentuk melalui Undang-Undang dengan daerah hukum meliputi wilayah Kota atau Kabupaten. Susunan Pengadilan Agama terdiri dari Pimpinan (Ketua PA dan Wakil Ketua PA), Hakim Anggota, Panitera, Sekretaris, dan Juru Sita.
READ MORE - Pengadilan Agama

Pengadilan Tinggi

Pengadilan Tinggi merupakan sebuah lembaga peradilan di lingkungan Peradilan Umum yang berkedudukan di ibu kota Provinsi sebagai Pengadilan Tingkat Banding terhadap perkara-perkara yang diputus oleh Pengadilan Negeri.

Pengadilan Tinggi juga merupakan Pengadilan tingkat pertama dan terakhir mengenai sengketa kewenangan mengadili antar Pengadilan Negeri di daerah hukumnya.

Susunan Pengadilan Tinggi dibentuk berdasarkan Undang-Undang dengan daerah hukum meliputi wilayah Provinsi. Pengadilan Tinggi terdiri atas Pimpinan (seorang Ketua PT dan seorang Wakil Ketua PT), Hakim Anggota, Panitera, dan Sekretaris.
READ MORE - Pengadilan Tinggi

Kekuasaan Kehakiman di Indonesia

Kekuasaan Kehakiman, dalam konteks negara Republik Indonesia, adalah kekuasaan negara yang merdeka untuk menyelenggarakan peradilan guna menegakkan hukum dan keadilan berdasarkan Pancasila, demi terselenggaranya Negara Hukum Republik Indonesia.

Perubahan (Amandemen) Undang-Undang Dasar 1945 telah membawa perubahan dalam kehidupan ketatanegaraan dalam pelaksanaan kekuasaan kehakiman. Berdasarkan perubahan tersebut ditegaskan bahwa kekuasaan kehakiman dilaksanakan oleh:

* Mahkamah Agung dan badan peradilan yang ada di bawahnya dalam lingkungan peradilan umum, lingkungan peradilan agama, lingkungan peradilan militer, dan lingkungan peradilan tata usaha negara.
* Mahkamah Konstitusi

Selain itu terdapat pula Peradilan Syariah Islam di Provinsi Nanggroe Aceh Darussalam, yang merupakan pengadilan khusus dalam Lingkungan Peradilan Agama (sepanjang kewenangannya menyangkut kewenangan peradilan agama) dan Lingkungan Peradilan Umum (sepanjang kewenangannya menyangkut kewenangan peradilan umum).

Disamping perubahan mengenai penyelenggaraan kekuasaan kehakiman, UUD 1945 juga mengintroduksi suatu lembaga baru yang berkaitan dengan penyelenggaraan kekuasaan kehakiman yaitu Komisi Yudisial. Komisi Yudisial bersifat mandiri yang berwenang mengusulkan pengangkatan hakim agung dan mempunyai wewenang lain dalam rangka menjaga dan menegakkan kehormatan, keluhuran martabat serta perilaku hakim

Undang-Undang Nomor 4 Tahun 2004

Perubahan UUD 1945 yang membawa perubahan mendasar mengenai penyelengaraan kekuasaan kehakiman, membuat perlunya dilakukan perubahan secara komprehensif mengenai Undang-Undang Ketentuan-ketentuan Pokok Kekuasaan Kehakiman.

Undang-Undang Nomor 4 Tahun 2004 tentang Kekuasaan Kehakiman mengatur mengenai badan-badan peradilan penyelenggara kekuasaan kehakiman, asas-asas penyelengaraan kekuasaan kehakiman, jaminan kedudukan dan perlakuan yang sama bagi setiap orang dalam hukum dan dalam mencari keadilan.

Pengalihan Badan Peradilan

Konsekuensi dari UU Kekuasaan Kehakiman adalah pengalihan organisasi, administrasi, dan finansial badan peradilan di bawah Mahkamah Agung. Sebelumnya, pembinaan badan-badan peradilan berada di bawah eksekutif (Departemen Kehakiman dan HAM, Departemen Agama, Departemen Keuangan) dan TNI, namun saat ini seluruh badan peradilan berada di bawah Mahkamah Agung dan Mahkamah Konstitusi.

Berikut adalah peralihan badan peradilan ke Mahkamah Agung:

* Organisasi, administrasi, dan finansial pada Direktorat Jenderal Badan Peradilan Umum dan Peradilan Tata Usaha Negara Departemen Kehakiman dan Hak Asasi Manusia, Pengadilan Tinggi, Pengadilan Tinggi Tata Usaha Negara, Pengadilan Negeri, dan Pengadilan Tata Usaha Negara, terhitung sejak tanggal 31 Maret 2004 dialihkan dari Departemen Kehakiman dan Hak Asasi Manusia ke Mahkamah Agung
* Organisasi, administrasi, dan finansial pada Direktorat Pembinaan Peradilan Agama Departemen Agama, Pengadilan Tinggi Agama/Mahkamah Syariah Propinsi, dan Pengadilan Agama/Mahkamah Syariah, terhitung sejak tanggal 30 Juni 2004 dialihkan dari Departemen Agama ke Mahkamah Agung
* Organisasi, administrasi, dan finansial pada Pengadilan Militer, Pengadilan Militer Tinggi, dan Pengadilan Militer Utama, terhitung sejak tanggal 1 September 2004 dialihkan dari TNI ke Mahkamah Agung. Akibat perlaihan ini, seluruh prajurit TNI dan PNS yang bertugas pada pengadilan dalam lingkup peradilan militer akan beralih menjadi personel organik Mahkamah Agung, meski pembinaan keprajuritan bagi personel militer tetap dilaksanakan oleh Mabes TNI.

Peralihan tersebut termasuk peralihan status pembinaan kepegawaian, aset, keuangan, arsip/dokumen, dan anggaran menjadi berada di bawah Mahkamah Agung.
READ MORE - Kekuasaan Kehakiman di Indonesia

Pengadilan Negeri

Pengadilan Negeri (biasa disingkat: PN) merupakan sebuah lembaga peradilan di lingkungan Peradilan Umum yang berkedudukan di ibu kota kabupaten atau kota. Sebagai Pengadilan Tingkat Pertama, Pengadilan Negeri berfungsi untuk memeriksa, memutus, dan menyelesaikan perkara pidana dan perdata bagi rakyat pencari keadilan pada umumnya.

Daerah hukum Pengadilan Negeri meliputi wilayah Kota atau Kabupaten.

Susunan Pengadilan Negeri terdiri dari Pimpinan (Ketua PN dan Wakil Ketua PN), Hakim Anggota, Panitera, Sekretaris, dan Jurusita.


Pengadilan Negeri di masa kolonial Hindia Belanda disebut landraad.
READ MORE - Pengadilan Negeri

Peradilan Tata Usaha Negara

Peradilan Tata Usaha Negara adalah lingkungan peradilan di bawah Mahkamah Agung yang melaksanakan kekuasaan kehakiman bagi rakyat pencari keadilan terhadap sengketa Tata Usaha Negara.

Peradilan Tata Usaha Negara meliputi:

1. Pengadilan Tata Usaha Negara
2. Pengadilan Tinggi Tata Usaha Negara

Peralihan ke Mahkamah Agung

Perubahan UUD 1945 membawa perubahan mendasar mengenai penyelengaraan kekuasaan kehakiman, dan diatur lebih lanjut dengan Undang-Undang Nomor 4 Tahun 2004 tentang Kekuasaan Kehakiman. Konsekuensi dari perubahan ini adalah pengalihan organisasi, administrasi, dan finansial badan peradilan di bawah Mahkamah Agung.

Sebelumnya, pembinaan Peradilan Tata Usaha Negara berada di bawah eksekutif, yakni Direktorat Jenderal Badan Peradilan Umum dan Peradilan Tata Usaha Negara Departemen Kehakiman dan HAM. Terhitung sejak 31 Maret 2004, organasi, administrasi, dan finansial PTUN dialihkan dari Departemen Kehakiman dan HAM ke Mahkamah Agung.

Peralihan tersebut termasuk peralihan status pembinaan kepegawaian, aset, keuangan, arsip/dokumen, dan anggaran menjadi berada di bawah Mahkamah Agung.
READ MORE - Peradilan Tata Usaha Negara

Peradilan Pajak

Peradilan Pajak adalah lingkungan peradilan di bawah Mahkamah Agung yang melaksanakan kekuasaan kehakiman bagi Wajib Pajak atau penanggung Pajak yang mencari keadilan terhadap Sengketa Pajak.

Pengadilan Pajak dibentuk berdasarkan Undang-Undang Nomor 14 Tahun 2002 tentang Pengadilan Pajak. Kedudukan Pengadilan Pajak berada di ibu kota negara. Persidangan oleh Pengadilan Pajak dilakukan di tempat kedudukannya, dan dapat pula dilakukan di tempat lain berdasarkan ketetapan Ketua Pengadilan Pajak.

Susunan Pengadilan Pajak terdiri atas: Pimpinan, Hakim Anggota, Sekretaris, dan Panitera. Pimpinan Pengadilan Pajak sendiri terdiri dari seorang Ketua dan sebanyak-banyaknya 5 orang Wakil Ketua.

Menurut UU Nomor 14 Tahun 2002 tetang Pengadilan Pajak, pembinaan teknis peradilan bagi Pengadilan Pajak dilakukan oleh Mahkamah Agung. Sedangkan pembinaan organisasi, administrasi, dan keuangan dilakukan oleh Departemen Keuangan.
READ MORE - Peradilan Pajak

Peradilan Agama

Peradilan Agama adalah lingkungan peradilan di bawah Mahkamah Agung bagi rakyat pencari keadilan yang beragama Islam mengenai perkara perdata tertentu yang diatur dalam Undang-Undang.

Lingkungan Peradilan Agama meliputi:

* Pengadilan Tinggi Agama
* Pengadilan Agama

[sunting] Peralihan ke Mahkamah Agung

Perubahan UUD 1945 yang membawa perubahan mendasar mengenai penyelengaraan kekuasaan kehakiman, membuat perlunya dilakukan perubahan secara komprehensif mengenai Undang-Undang Ketentuan-ketentuan Pokok Kekuasaan Kehakiman.

Undang-Undang Nomor 4 Tahun 2004 tentang Kekuasaan Kehakiman mengatur mengenai badan-badan peradilan penyelenggara kekuasaan kehakiman, asas-asas penyelengaraan kekuasaan kehakiman, jaminan kedudukan dan perlakuan yang sama bagi setiap orang dalam hukum dan dalam mencari keadilan.

Konsekuensi dari UU Kekuasaan Kehakiman adalah pengalihan organisasi, administrasi, dan finansial badan peradilan di bawah Mahkamah Agung. Sebelumnya, pembinaan peradilan agama berada di bawah Direktorat Pembinaan Peradilan Agama Departemen Agama. Terhitung sejak tanggal 30 Juni 2004, organisasi, administrasi, dan finansial peradilan agama dialihkan dari Departemen Agama ke Mahkamah Agung. Peralihan tersebut termasuk peralihan status pembinaan kepegawaian, aset, keuangan, arsip/dokumen, dan anggaran menjadi berada di bawah Mahkamah Agung.
READ MORE - Peradilan Agama

Peradilan Militer

Peradilan Militer adalah lingkungan peradilan di bawah Mahkamah Agung yang melaksanakan kekuasaan kehakiman mengenai kejahatan-kejahatan yang berkaitan dengan tindak pidana militer[rujukan?].

Peradilan Militer meliputi:

1. Pengadilan Militer
2. Pengadilan Militer Tinggi
3. Pengadilan Militer Utama

Peralihan ke Mahkamah Agung

Perubahan (Amandemen) UUD 1945 membawa perubahan mendasar mengenai penyelengaraan kekuasaan kehakiman, dan diatur lebih lanjut dengan Undang-Undang Nomor 4 Tahun 2004 tentang Kekuasaan Kehakiman. Konsekuensi dari perubahan ini adalah pengalihan organisasi, administrasi, dan finansial badan peradilan di bawah Mahkamah Agung.

Sebelumnya, pembinaan Peradilan Militer berada di bawah Markas Besar Tentara Nasional Indonesia. Terhitung sejak 1 September 2004, organasi, administrasi, dan finansial Peradilan Militer dialihkan dari TNI ke Mahkamah Agung. Akibat perlaihan ini, seluruh prajurit TNI dan PNS yang bertugas pada pengadilan dalam lingkup peradilan militer akan beralih menjadi personel organik Mahkamah Agung, meski pembinaan keprajuritan bagi personel militer tetap dilaksanakan oleh Mabes TNI.
READ MORE - Peradilan Militer

Peradilan Umum

Peradilan Umum adalah lingkungan peradilan di bawah Mahkamah Agung yang menjalankan kekuasaan kehakiman bagi rakyat pencari keadilan pada umumnya[rujukan?].

Peradilan umum meliputi:

1. Pengadilan Negeri, berkedudukan di ibukota kabupaten/kota, dengan daerah hukum meliputi wilayah kabupaten/kota
2. Pengadilan Tinggi, berkedudukan di ibukota provinsi, dengan daerah hukum meliputi wilayah provinsi

Peralihan ke Mahkamah Agung

Perubahan UUD 1945 membawa perubahan mendasar mengenai penyelengaraan kekuasaan kehakiman, dan diatur lebih lanjut dengan Undang-Undang Nomor 4 Tahun 2004 tentang Kekuasaan Kehakiman. Konsekuensi dari perubahan ini adalah pengalihan organisasi, administrasi, dan finansial badan peradilan di bawah Mahkamah Agung.

Sebelumnya, pembinaan Peradilan Umum berada di bawah eksekutif, yakni Direktorat Jenderal Badan Peradilan Umum dan Peradilan Tata Usaha Negara Departemen Kehakiman dan HAM. Terhitung sejak 31 Maret 2004, organasi, administrasi, dan finansial peradilan umum dialihkan dari Departemen Kehakiman dan HAM ke Mahkamah Agung. Peralihan tersebut termasuk peralihan status pembinaan kepegawaian, aset, keuangan, arsip/dokumen, dan anggaran menjadi berada di bawah Mahkamah Agung.
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Peradilan Dokter (United States of America vs Karl Brandt)

Peradilan Dokter atau The Doctor's Trial (resminya adalah : United States of America vs Karl Brandt) adalah merupakan peradilan pertama dari 12 rangkaian peradilan atas kejahatan perang yang ditangani oleh kewenangan Amerika pada wilayah pendudukannya di Nuremberg, Jerman setelah Perang Dunia II. Peradilan ini dilaksanakan pada ruangan yang sama dengan ruangan Peradilan Militer Amerika ataupun Peradilan Militer Internasional namun dilaksanakan pada saat kedua peradilan tersebut belum diberlakukan. Peradilan tersebut secara kolektif dikenal sebagai lanjutan dari Peradilan Nuremberg, yang secara resminya disebut "peradilan atas kejahatan perang sebelum Peradilan Militer Nuremberg" (Trials of War Criminals before the Nuremberg Military Tribunals-NMT).

20 dari 23 terdakwa adalah dokter (yang 3 adalah Brack, Rudolf Brandt, dan Sievers yang merupakan staf Nazi) yang kesemuanya dituntut berdasarkan keterlibatannya dalam percobaan kemanusiaan Nazi.

Hakim dalam perkara ini yang juga merupakan hakim dalam Peradilan Militer I yaitu Walter B. Beals (ketua majelis hakim) dari Washington, Harold L. Sebring dari Florida, dan Johnson T. Crawford dari Oklahoma, dengan Victor C. Swearingen, sebagai hakim cadangan. Ketua dewan untuk penuntutan pada perkara ini adalah Telford Taylor dan ketua jaksa penuntut umum adalah James M. McHaney. Dakwaan diajukan pada tanggal 25 Oktober 1946; peradilan terakhir dimulai pada tanggal 9 December 1946 hingga tanggal 20 Agustus 1947. Dari ke 23 terdakwa tersebut, 7 diantaranya dibebaskan dan 7 orang lagi dijatuhi hukuman mati sedangkan sisanya dijatuhi hukuman penjara antara 10 tahun hingga seumur hidup.

Dakwaan

Dakwaan dibuat berdasarkan 4 tuduhan yaitu :

1. Persekongkolan (konspirasi) dalam melakukan kejahatan perang dan kejahatan kemanusiaan sebagaimana dimaksud dalam butir 2 dan 3;
2. Kejahatan perang: melakukan eksperimen medis tanpa persetujuan pasien yang merupakan tahanan perang dan penduduk sipil dari negara yang diduduki serta turut serta melakukan pembunuhan massal atas penghuni kamp konsentrasi
3. Kejahatan kemanusiaan: melakukan kejahatan sebagaimana dimaksud dalam butir 2 juga terhadap warga negara Jerman.
4. Keanggotaan pada organisasi kriminal yaitu SS, dimana SS telah dinyatakan sebagai organisasi kriminal pada peradilan Nuremberg.

Seluruh terdakwa mengajukan pembelaan bahwa mereka tidak bersalah.

Peradilan membatalkan dakwaan butir ke 1 mengenai persekongkolan dengan alasan bahwa dakwaan tersebut berada diluar jurisdiksi (kewenangan) peradilan Dokter.

Para terhukum mati telah dieksekusi dengan cara digantung pada tanggal 2 Juni 1948 di Penjara Landsberg, Bavaria.

Pada umumnya yang dihukum mati adalah anggota dari suatu organisasi yang telah dinyatakan sebagai organisasi kriminal oleh putusan Peradilan Militer Internasional yaitu SS


Catatan kaki

1. ^ Ruff, Siegfried, et al. Sicherheit und Rettung in der Luftfahrt. Koblenz : Bernard & Graefe, c1989.
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The Natural Law Tradition in Ethics

‘Natural law theory’ is a label that has been applied to theories of ethics, theories of politics, theories of civil law, and theories of religious morality. We will be concerned only with natural law theories of ethics: while such views arguably have some interesting implications for law, politics, and religious morality, these implications will not be our focus here.

This article has two central objectives. First, it aims to identify the defining features of natural law moral theory. Second, it aims to identify some of the main theoretical options that natural law theorists face in formulating a precise view within the constraints set by these defining features and some of the difficulties for each of these options. It will not, however, attempt to recount the history of the development of natural law thought. (For a very helpful detailed history of natural law thought up to the beginning of the modern period, see Crowe 1977. For a very helpful detailed history of natural law thought in the modern period, see Haakonssen 1996. For an article-length recap of the entire history of natural law thought, see Haakonssen 1992.)

* 1. Key Features of Natural Law Theories
o 1.1 Natural law and divine providence
o 1.2 Natural law and practical rationality
o 1.3 The substance of the natural law view
o 1.4 Paradigmatic and nonparadigmatic natural law theories
* 2. Theoretical Options for Natural Law Theorists
o 2.1 Natural goodness
o 2.2 Knowledge of the basic goods
o 2.3 The catalog of basic goods
o 2.4 From the good to the right
* Bibliography
* Other Internet Resources
* Related Entries

1. Key Features of Natural Law Theories
Even though we have already confined ‘natural law theory’ to its use as a term that marks off a certain class of ethical theories, we still have a confusing variety of meanings to contend with. Some writers use the term with such a broad meaning that any moral theory that is a version of moral realism -- that is, any moral theory that holds that some positive moral claims are literally true (for this conception of moral realism, see Sayre-McCord 1988)-- counts as a natural law view. Some use it so narrowly that no moral theory that is not grounded in a very specific form of Aristotelian teleology could count as a natural law view. It might be thought that there is nothing that can be done to begin a discussion of natural law theory in ethics other than to stipulate a meaning for ‘natural law theory’ and to proceed from there. But there is a better way of proceeding, one that takes as its starting point the central role that the moral theorizing of Thomas Aquinas plays in the natural law tradition. If any moral theory is a theory of natural law, it is Aquinas's. (Every introductory ethics anthology that includes material on natural law theory includes material by or about Aquinas; every encyclopedia article on natural law thought refers to Aquinas.) It would seem sensible, then, to take Aquinas's natural law theory as the central case of a natural law position: of theories that exhibit all of the key features of Aquinas's natural law view we can say that they are clearly natural law theories; of theories that exhibit few of them we can say that they are clearly not natural law theories; and of theories that exhibit many but not all of them we can say that they are in the neighborhood of the natural law view but nonetheless must be viewed as at most deviant cases of that position. There remain, no doubt, questions about how we determine what are to count as the key features of Aquinas's position. But we may take as the key features those theses about natural law that structure his overall moral view and which provide the basis for other theses about the natural law that he affirms.

For Aquinas, there are two key features of the natural law, features the acknowledgment of which structures his discussion of the natural law at Question 94 of the Prima Secundae of the Summa Theologiae. The first is that, when we focus on God's role as the giver of the natural law, the natural law is just one aspect of divine providence; and so the theory of natural law is from that perspective just one part among others of the theory of divine providence. The second is that, when we focus on the human's role as recipient of the natural law, the natural law constitutes the principles of practical rationality, those principles by which human action is to be judged as reasonable or unreasonable; and so the theory of natural law is from that perspective the preeminent part of the theory of practical rationality.
1.1 Natural law and divine providence
While our main focus will be on the status of the natural law as constituting the principles of practical rationality, we should consider for a moment at least the importance within Aquinas's view of the claim that the natural law is an aspect of divine providence. The fundamental thesis affirmed here by Aquinas is that the natural law is a participation in the eternal law (ST IaIIae 91, 2). The eternal law, for Aquinas, is that rational plan by which all creation is ordered (ST IaIIae 91, 1); the natural law is the way that the human being “participates” in the eternal law (ST IaIIae 91, 2). While nonrational beings have a share in the eternal law only by being determined by it -- their action nonfreely results from their determinate natures, natures whose existence results from God's will in accordance with God's eternal plan -- rational beings like us are able to grasp our share in the eternal law and freely act on it (ST IaIIae 91, 2). It is this feature of the natural law that justifies, on Aquinas's view, our calling the natural law ‘law.’ For law, as Aquinas defines it (ST IaIIae 90, 4), is a rule of action put into place by one who has care of the community; and as God has care of the entire universe, God's choosing to bring into existence beings who can act freely and in accordance with principles of reason is enough to justify our thinking of those principles of reason as law.
1.2 Natural law and practical rationality
When we focus on the recipient of the natural law, that is, us human beings, the thesis of Aquinas's natural law theory that comes to the fore is that the natural law constitutes the basic principles of practical rationality for human beings, and has this status by nature (ST IaIIae 94, 2). The notion that the natural law constitutes the basic principles of practical rationality implies, for Aquinas, both that the precepts of the natural law are universally binding by nature (ST IaIIae 94, 4) and that the precepts of the natural law are universally knowable by nature (ST IaIIae 94, 4; 94, 6).

The precepts of the natural law are binding by nature: no beings could share our human nature yet fail to be bound by the precepts of the natural law. This is so because these precepts direct us toward the good as such and various particular goods (ST IaIIae 94, 2). The good and goods provide reasons for us rational beings to act, to pursue the good and these particular goods. As good is what is perfective of us given the natures that we have (ST Ia 5, 1), the good and these various goods have their status as such naturally. It is sufficient for certain things to be good that we have the natures that we have; it is in virtue of our common human nature that the good for us is what it is.

The precepts of the natural law are also knowable by nature. All human beings possess a basic knowledge of the principles of the natural law (ST IaIIae 94, 4). This knowledge is exhibited in our intrinsic directedness toward the various goods that the natural law enjoins us to pursue, and we can make this implicit awareness explicit and propositional through reflection on practice. Aquinas takes it that there is a core of practical knowledge that all human beings have, even if the implications of that knowledge can be hard to work out or the efficacy of that knowledge can be thwarted by strong emotion or evil dispositions (ST IaIIae 94, 6).

If Aquinas's view is paradigmatic of the natural law position, and these two theses -- that from the God's-eye point of view, it is law through its place in the scheme of divine providence, and from the human's-eye point of view, it constitutes a set of naturally binding and knowable precepts of practical reason --- are the basic features of the natural law as Aquinas understands it, then it follows that paradigmatic natural law theory is incompatible with several views in metaphysics and moral philosophy. On the side of metaphysics, it is clear that the natural law view is incompatible with atheism: one cannot have a theory of divine providence without a divine being. It is also clear that the paradigmatic natural law view rules out a deism on which there is a divine being but that divine being has no interest in human matters. Nor can one be an agnostic while affirming the paradigmatic natural law view: for agnosticism is the refusal to commit either to God's existence or nonexistence, whereas the paradigmatic natural law view involves a commitment to God's existence. On the side of moral philosophy, it is clear that the natural law view is incompatible with a nihilism about value, that is, the rejection of the existence of values. It is also incompatible with relativist and conventionalist views, on which the status of value is entirely relative to one's community or determined entirely by convention. It is also incompatible with a wholesale skepticism about value, for the natural law view commits one to holding that certain claims about the good are in fact knowable, indeed, knowable by all.
1.3 The substance of the natural law view

The center of Aquinas's natural law view as described thus far concerns what we might call the metaphysics of morals: its role in divine providence and the universally authoritative character of its norms. What, though, of the normative content of Aquinas's natural law position? Is there anything distinctive about the normative natural law position? Here it is difficult to say much that is uncontroversial, but we can say a sufficient amount about Aquinas's natural law theory to make clear that it is an interesting alternative to utilitarian (and more generally consequentialist) ethics, Kantian views, and standard Aristotelian positions. (For a magisterial treatment of Aquinas's natural law ethic, see Rhonheimer 2000.)

Aquinas says that the fundamental principle of the natural law is that good is to be done and evil avoided (ST IaIIae 94, 2). This is, one might say, a principle of intelligibility of action (cf. Grisez 1965): only action that can be understood as conforming with this principle, as carried out under the idea that good is to be sought and bad avoided, can be understood as an intelligible action. But no one can in acting simply pursue good -- one has to pursue some particular good. And Aquinas holds that we know immediately, by inclination, that there are a variety of things that count as good and thus to be pursued -- life, procreation, knowledge, society, and reasonable conduct (ST IaIIae 94, 2; 94, 3) are all mentioned by Aquinas (though it is not clear whether the mentioned items are supposed to constitute an exhaustive list).

So on Aquinas's view it is the good that is fundamental: whether an action, or type of action, is right is logically posterior to whether that action brings about or realizes or is some good. The good is, on Aquinas's view, prior to the right. But on Aquinas's view we are, somehow, able to reason from these principles about goods to guidelines about how these goods are to be pursued. Aquinas's thoughts are along the following lines: first, there are certain ways of acting in response to the basic human goods that are intrinsically flawed; and second, for an act to be right, or reasonable, is for it to be an act that is in no way intrinsically flawed (ST IaIIae 18, 1).

The important task, then, is to identify the ways in which an act can be intrinsically flawed. Aquinas does not obviously identify some master principle that one can use to determine whether an act is intrinsically flawed (though for an attempt to identify such a master principle in Aquinas's work see Finnis 1998, p. 126), though he does indicate where to look -- we are to look at the features that individuate acts, such as their objects (ST IaIIae 18, 2), their ends (ST IaIIae 18, 3), their circumstances (ST IaIIae 18, 4), and so forth. An act might be flawed through a mismatch of object and end -- that is, between the immediate aim of the action and its more distant point. If one were, for example, to regulate one's pursuit of a greater good in light of a lesser good -- if, for example, one were to seek friendship with God for the sake of mere bodily survival rather than vice versa -- that would count as an unreasonable act. An act might be flawed through the circumstances: while one is bound to profess one's belief in God, there are certain circumstances in which it is inappropriate to do so (ST IIaIIae 3, 2). An act might be flawed merely through its intention: to direct oneself against a good -- as in murder (ST IIaIIae 64, 6), and lying (ST IIaIIae 110, 3), and blasphemy (ST IIaIIae 13, 2) -- is always to act in an unfitting way. Aquinas has no illusions that we will be able to state principles of conduct that exhaustively determine right conduct, as if for every situation in which there is a correct choice to be made there will be a rule that covers the situation. He allows for the Aristotelian insight that the particulars of the situation always outstrip one's rules, so that one will always need the moral and intellectual virtues in order to act well (Commentary on NE, II, 2, 259). But he denies that this means that there are no principles of right conduct that hold everywhere and always, and some even absolutely. On Aquinas's view, killing of the innocent is always wrong, as is lying, adultery, sodomy, and blasphemy; and that they are always wrong is a matter of natural law. (These are only examples, not an exhaustive list of absolutely forbidden actions.)

Part of the interest of Aquinas's substantive natural law ethic lies in its not falling into the neat contemporary categories for moral theories. His natural law view understands principles of right to be grounded in principles of good; on this Aquinas sides with utilitarians, and consequentialists generally, against Kantians. But Aquinas would deny that the principles of the right enjoin us to maximize the good -- while he allows that considerations of the greater good have a role in practical reasoning, action can be irremediably flawed merely through (e.g.) badness of intention, flawed such that no good consequences that flow from the action would be sufficient to justify it -- and in this Aquinas sides with the Kantians against the utilitarians and consequentialists of other stripes. And while Aquinas is in some ways Aristotelian, and recognizes that virtue will always be required in order to hit the mark in a situation of choice, he rejects the view commonly ascribed to Aristotle (for doubts that it is Aristotle's view; see Irwin 2000) that there are no universally true general principles of right. The natural law view rejects wholesale particularism.
1.4 Paradigmatic and nonparadigmatic natural law theories

To summarize: the paradigmatic natural law view holds that (1) the natural law is given by God; (2) it is naturally authoritative over all human beings; and (3) it is naturally knowable by all human beings. Further, it holds that (4) the good is prior to the right, that (5) right action is action that responds nondefectively to the good, that (6) there are a variety of ways in which action can be defective with respect to the good, and that (7) some of these ways can be captured and formulated as general rules.

Aquinas was not the only historically important paradigmatic natural law theorist. Thomas Hobbes, for example, was also a paradigmatic natural law theorist. He held that the laws of nature are divine law (Leviathan, xv, ¶41), that all humans are bound by them (Leviathan, xv, ¶¶36), and that it is easy to know at least the basics of the natural law (Leviathan, xv, ¶35). He held that the fundamental good is self-preservation (Leviathan, xiii, ¶14), and that the laws of nature direct the way to this good (Leviathan, xiv, ¶3). He offered a catalog of laws of nature that constitute the “true moral philosophy” (Leviathan, xv, ¶40). There are also a number of contemporary writers that affirm the paradigmatic view. These writers, not surprisingly, trace their views to Aquinas as the major influence, though they do not claim to reproduce his views in detail. (See, for example, Grisez 1983, Finnis 1980, MacIntyre 1999, and Murphy 2001.)

It is also easy to identify a number of writers, both historical and contemporary, whose views are easily called natural law views, through sharing all but one or two of the features of Aquinas's paradigmatic position. Recently there have been nontheistic writers in the natural law tradition, who deny (1): see, for example, the work of Michael Moore (1982, 1996) and Philippa Foot (2000). There were a number of post-Thomistic writers in the medieval and modern periods who in some way denied (2), the natural authority of the natural law, holding that while the content of the natural law is fixed either wholly or in part by human nature, its preceptive power could only come from an additional divine command: the views of John Duns Scotus, Francisco Suarez, and John Locke fit this mold. Arguably the Stoics were natural law thinkers, but they seem to deny (4), holding the right to be prior to the good (see Striker 1986). Some contemporary theological ethicists called ‘proportionalists’ (e.g. Hallett 1995) have taken up the natural law view with a consequentialist twist, denying (6). And while some see Aristotle as being the source of the natural law tradition, some have argued that his central appeal to the insight of the person of practical wisdom as setting the final standard for right action precludes the possibility of the sort of general rules that would (at least in a theistic context) make Aristotle's ethics a natural law position. There is of course no clear answer to the question of when a view ceases to be a natural law theory, though a nonparadigmatic one, and becomes no natural law theory at all.
2. Theoretical Options for Natural Law Theorists
Even within the constraints set by the theses that constitute the paradigmatic natural law position, there are a number of variations possible in the view. Here we will consider several issues that must be addressed by every particular natural law view, and some difficulties that arise for possible responses to these issues.
2.1 Natural goodness

It is essential to the natural law position that there be some things that are universally and naturally good. But how is universal, natural goodness possible? Given the variability of human tastes and desires, how could there be such universal goods?

Natural law theorists have at least three answers available to them. The first answer is Hobbesian, and proceeds on the basis of a subjectivist theory of the good. On subjectivist theories of the good, what makes it true that something is good is that it is desired, or liked, or in some way is the object of one's pro-attitudes, or would be the object of one's pro-attitudes in some suitable conditions. One might think that to affirm a subjectivist theory of the good is to reject natural law theory, given the immense variation in human desire. But this is not so. For one might hold that human beings’ common nature, their similarity in physiological constitution, makes them such as to have some desires in common, and these desires may be so central to human aims and purposes that we can build important and correct precepts of rationality around them. This is in fact what Hobbes claims. For while on the Hobbesian view what is good is what is desired, Hobbes thinks that humans are similarly constructed so that for each human (when he or she is properly biologically functioning) his or her central aim is the avoidance of violent death. Thus Hobbes is able to build his entire natural law theory around a single good, the good of self-preservation, which is so important to human life that exceptionlessly binding precepts can be formulated with reference to its achievement.

The second answer is Aristotelian. The idea here is to reject a subjectivism about the good, holding that what makes it true that something is good is not that it stands in some relation to desire but rather that it is somehow perfective or completing of a being, where what is perfective or completing of a being depends on that being's nature. So what is good for an oak is what is completing or perfective of the oak, and this depends on the kind of thing that an oak is by nature; and what is good for a dog is what is completing or perfective of the dog, and this depends on the kind of thing that a dog is by nature; and what is good for a human depends on what is completing or perfective of a human, and this depends on the kind of thing a human is by nature. So the fact of variability of desire is not on its own enough to cast doubt on the natural law universal goods thesis: as the good is not defined fundamentally by reference to desire, the fact of variation in desire is not enough to raise questions about universal goods. This is the view affirmed by Aquinas, and the majority of adherents to the natural law tradition.

The third answer is Platonic. Like the Aristotelian view, it rejects a subjectivism about the good. But it does not hold that the good is to be understood in terms of human nature. The role of human nature is not to define or set the good, but merely to define what the possibilities of human achievement are. So one might think that some things -- knowledge, beauty, etc. -- are just good in themselves, apart from any reference to human desire or perfection, but hold that the pursuit of these are only part of the natural law insofar as they fall within the ambit of human practical possibility. This view of the good is not much defended -- in part because of the scathing criticism offered of Plato's view by Aristotle in the Nicomachean Ethics (NE I, 6) -- but it was affirmed by Iris Murdoch (1970), and forms part of the natural law view defended by Michael Moore (1982).

None of these answers is without difficulties. While there are contemporary defenders of Hobbesian moral theories (see Gauthier 1986), there is no one who is on record defending Hobbes's interesting combination of a thoroughgoing subjectivism about the good along with an account of a dominant substantive good around which the moral rules are formulated. The basic reason for this just seems to be that Hobbes's arguments that the human desire for self-preservation is such an entirely dominant desire are implausible, and there do not seem to be any better arguments available. The Platonic version of the view has struck many as both too metaphysically ornate to be defensible, on one hand, and as not fitting very well with a conception of ethics grounded in nature, on the other. While the Aristotelian version of the view has also been charged with some of the metaphysical excesses that the Platonist view allegedly countenances, most contemporary natural law theory is Aristotelian in its orientation, holding that there is still good reason to hold to an understanding of flourishing in nature and that none of the advances of modern science has called this part of the Aristotelian view into question.
2.2 Knowledge of the basic goods

Another central question that the natural law tradition has wrestled with concerns our knowledge of the basic goods. How can we come to know these fundamental goods?

Return to Aquinas's paradigmatic natural law position. His account of our knowledge of the fundamental goods has been understood in different ways (Murphy 2001, ch. 1). Some have understood Aquinas as affirming a theory of our knowledge of the fundamental precepts of the natural law that we can label ‘derivationism.’ The idea here is that we can derive from a metaphysical study of human nature and its potentialities and actualizations the conclusion that certain things are good for human beings, and thus that the primary precepts of the natural law bid us to pursue these things (cf. Lisska 1996). One can imagine a Hobbesian version of this view as well. One might say that by a careful study of the human being's desire-forming mechanisms, one can see that there are certain things that would be necessarily desired by biologically sound human beings, and thus that the human good includes these items. (Hobbes in fact produces such arguments at EL, I, 7.) While a natural law theorist might downplay the importance of derivationist knowledge of the natural law, it is hard to see how a consistent natural law theorist could entirely reject the possibility of such knowledge, given the view that we can provide a substantial account of how the human good is grounded in nature: for to show that the human good is grounded in nature is to show that human nature explains why certain things are goods, and it is hard to see how one could affirm that claim while entirely rejecting the possibility of derivationist knowledge of the human good (see Murphy 2001, pp. 16-17). Some have thought, echoing criticisms of natural law theory by those entirely hostile to it, that derivationist theories of practical knowledge fall prey to ‘Hume's Law,’ that it is impossible to derive an ‘ought’ from an ‘is,’ that is, any normative truth from any set of nonnormative truths. The most that this can show, though, is that the natural law theorist needs an account of those bridge truths that enable us to move between claims about human nature and claims about human goods.

It must be conceded, however, that a consistent natural law theorist could hardly hold that derivationist knowledge of the human good is the only such knowledge possible. For it is part of the paradigm natural law view that the basic principles of the natural law are known by all, and the sort of arguments that would need to be made in order to produce derivationist knowledge of the human good are certainly not had (or even have-able) by all. Another way that Aquinas's account of knowledge of the fundamental goods has been understood -- and it is an understanding better able to come to grips with the widespread knowledge of fundamental goods -- can be labeled ‘inclinationism.’ On this view, one's explicit grasp of the fundamental goods follows upon but is not derived from one's persistent directedness toward the pursuit of certain ends, which directedness involves an implicit grasp of these items as good. So human beings exhibit a tendency to pursue life, and knowledge, and friendship, and so forth; and reflection on this tendency occasions an immediate grasp of the truth that life, and knowledge, and friendship, and so forth are goods. The affirmation of the claims ‘life is good,’ ‘knowledge is good,’ ‘friendship is good,’ etc. makes intelligible the persistent pursuit of these ends by rational beings like us.

While inclinationism and derivationism are distinct methods, they are by no means exclusive: one can hold that knowledge of fundamental goods is possible in both ways. Indeed, it may well be that one way of knowing can supplement and correct the other. There may be some goods that are easier to recognize when taking the speculative point of view, the point of view of the observer of human nature and its potentialities, and some that are easier to recognize when taking the practical point of view, the point of view of the actively engaged in human life. Indeed, by connecting nature and the human good so tightly, the natural law view requires that an account of the good reconcile these points of view.

There are, of course, reasons to be worried about both of these ways of knowing basic goods -- worries that go beyond general skeptical doubts about how we could know any normative truths at all. Derivationists have to explain how we come to know what counts as an actualization of a human potency, and have to explain how we connect these via bridge principles with human goods. Inclinationists have their own troubles. In particular, they need to deal with the fact that, even if they are not in the business of deriving goods from inclinations or identifying the goods precisely with what we tend to pursue, they take as their starting point human directedness. And it has been rightly noted that human directedness is not always a lovely thing. Power and prestige seem to be a matter of human directedness -- at least as much so as, say, aesthetic enjoyment and speculative knowledge -- but they do not make it to the natural law theorist's catalog of goods (though they do appear to be part of the good in Aristotle's picture; cf. the discussion in Hare 2001, p. 14). While these difficulties persist for inclinationist and derivationist accounts of knowledge of the basic goods, they may well be eased if one affirms both accounts: one might be able to use inclinationist knowledge to provide some basis for bridge principles between knowledge of human nature and knowledge of human goods, and one might be able to use derivationist knowledge to modify, in a non-ad-hoc way, the objectionable elements of the account that one might be bound to give if proceeding on an inclinationist basis alone.
2.3 The catalog of basic goods

A developed natural law theory includes within it a catalog of the fundamental goods, the basic values upon which the principles of right are founded. Suppose that we follow at least the inclinationist line, taking it to be faithful to the natural law idea that knowledge of the basic goods is widely distributed. Our task then is to provide an explicit account of those goods implicit knowledge of which is manifested in human inclination toward certain ends. What are the goods affirmation of which makes intelligible these inclinations?

It is clear from this way of putting the question that even if natural law theorists are right that this implicit knowledge is widely distributed, it would be easy for natural law theorists to disagree in their catalogs of basic goods. For the task here is that of formulating propositionally, and in as illuminating a way as possible, what items need be affirmed as intrinsically good in order to make sense out of our inclinations. And there are, unsurprisingly, disagreements in catalogs of basic goods. The goods that Aquinas mentions in his account include life, procreation, social life, knowledge, and rational conduct. Grisez 1983 includes self-integration, practical reasonableness, authenticity, justice and friendship, religion, life and health, knowledge of truth, appreciation of beauty, and playful activities (pp. 121-122). Finnis 1980 includes life, knowledge, aesthetic appreciation, play, friendship, practical reasonableness, and religion (pp. 86-90). Chappell 1995 includes friendship, aesthetic value, pleasure and the avoidance of pain, physical and mental health and harmony, reason, rationality, and reasonableness, truth and the knowledge of it, the natural world, people, fairness, and achievements (p. 43). Finnis 1996 affirms a list much like Grisez 1983, but includes in it “the marital good” (p. 5). Murphy 2001 includes life, knowledge, aesthetic experience, excellence in work and play, excellence in agency, inner peace, friendship and community, religion, and happiness (p. 96). Gomez-Lobo 2002 includes life, the family, friendship, work and play, experience of beauty, theoretical knowledge, and integrity (pp. 10-23).

Aside from the inevitable differences in lists of goods produced by natural law theorists, there are also more focused debates about the inclusion of particular alleged goods within the natural law theorists’ lists. Note, for example, that of the lists above, only Chappell's includes pleasure and the absence of pain. Whatever else we say here, it seems that common sense is initially on Chappell's side: what seems more obvious than that pleasure and the avoidance of pain are basic reasons for action? The reasons for rejecting pleasure and the absence of pain from the list of goods are various: some writers argue, following Aristotle, that pleasure is not a good in abstraction from the activity in which pleasure is taken; some that the absence of pain is not a completion or a fulfillment of human nature, and thus cannot be among the basic goods; some that the avoidance of pain is simply an instance of some other basic good, such as inner peace. What this debate illustrates is the extent to which the formulation of a catalog of goods is not a straightforward matter. Everyone agrees that one who avoids touching a hot stove in part to avoid the awful pain has some reason to avoid touching the stove. The difficulty is to bring together our various sources of knowledge about the good to formulate an account that explains well precisely why it is that such an act is reasonable. These sorts of debates reappear with respect to goods like life (is life intrinsically or instrumentally good? is merely being alive intrinsically good, or is life only intrinsically good when one is enjoying a certain level of vitality?), religion (is harmony with God really a human good? is it merely a kind of friendship? does its status as a good depend on whether there is a being such as God?), and what Finnis and Grisez now call the ‘marital good’ (is the good of marriage simply an amalgam of various other goods, as friendship, procreation, rational agency, or is it really a distinct, analytically separable value?).
2.4 From the good to the right

Suppose that we were to have in hand satisfactory accounts of natural goodness and our knowledge of it, along with a rationally defensible account of the basic goods that are the fundamental reasons for action. All that we would have so far is the natural law theorist's account of what we might call minimally rational action -- action that seeks to realize some good. What we would not have yet is a full account of right action. For we are frequently in situations in which there are various different courses of action that we might pursue, each of which promises to realize some good; are there no guidelines to which we might appeal in order to show some of these choices superior to others? After all, some of even the most obviously morally wrong actions can be seen to promise some good -- a robber might kill dozens in order to get the money he needs to pursue genuine goods -- and the natural law theorist wants to be able to say why these obviously morally wrong actions are morally wrong. As we have seen, the paradigmatic natural law view holds that there are some general rules of right that govern our pursuit of the various goods, and that these rules of right exclude those actions that are in some way defective responses to the various basic goods. How, though, are we to determine what counts as a defective response to the goods?

There are at least three possibilities. One might appeal to a master rule of right that can be used to generate further rules; call this the master rule approach. One might appeal to a methodological principle by which particular rules can be generated; call this the method approach. Or one might appeal to some standard for distinguishing correct and incorrect moral rules that is not understandable as a method; call this (for reasons we shall see shortly) the virtue approach.

On the master rule approach, the task of the natural law theorist is to identify some master rule which bears on the basic goods and, perhaps in conjunction with further factual premises, is able to produce a stock of general rules about what sorts of responses to the basic goods are or are not reasonable. While it is far from clear whether there was a single way that Aquinas proceeded in establishing moral norms from the primary precepts of the natural law in the Summa Theologiae, John Finnis has argued (Finnis 1998, p. 126) that Aquinas employed this master rule approach: on his view, Aquinas held that this master rule is the rule of universal love, that one should love one's neighbor as oneself. This rule bids us to respond to the good lovingly wherever it can be realized, and from it we can see that certain ways of responding to the good are ruled out as essentially unloving. Grisez clearly employs this approach: he writes that the first principle of morality is that “In voluntarily acting for human goods and avoiding what is opposed to them, one ought to choose and otherwise will those and only those possibilities whose willing is compatible with a will toward integral human fulfillment” (Grisez 1983, p. 184). This first principle, Grisez says, contains implicitly within it various “modes of responsibility” from which particular moral rules can be derived.

The central difficulty with this employment of the master rule approach is that of explaining how we are to grasp this first principle of morality as correct. What is the relationship between our knowledge of the basic goods and our knowledge of the master rule? When Grisez defends his master rule, he writes that its status is due to a certain function that a first principle of morality must perform: “It must provide the basis for guiding choices toward overall human fulfillment. As a single principle, it will give unity and direction to a morally good life. As the same time, it must not exclude ways of living which might contribute to a complete human community” (Grisez 1983, p. 184). But this presupposes an awful lot: why should we assume in advance that a proper response to the basic goods must be one that is oriented toward a “complete human community”?

On the method approach, by contrast, there is no need for a master principle that will serve as the basis for deriving some particular moral rules. The idea here is the natural law theorist needs not a master rule but a test for distinguishing correct moral rules from incorrect ones. We know from our earlier consideration of the paradigmatic natural law view that the test for distinguishing correct moral rules from incorrect ones must be something like the following: if a moral rule rules out certain choices as defective that are in fact defective, and rules out no choices as defective that are not in fact defective, then it is a correct moral rule. What would distinguish different employments of the method approach is their accounts of what features of a choice we appeal to in order to determine whether it is defective. The knowledge that we have to go on here is our knowledge of the basic goods. If a certain choice presupposes something false about the basic goods, then it responds defectively to them. So a moral rule can be justified by showing that it rules out only choices that presuppose something false about the basic goods.

This is very abstract. Here is an example of an employment of this approach. While Finnis now affirms Grisez's master rule approach, in his 1980 work he defends various principles of practical reasonableness without adverting to a master rule. He argues, for example, that it is always wrong to intend the destruction of an instance of a basic good (Finnis 1980, pp. 118-123). (So, no lying, for lying is an intentional attack on knowledge; no murder, for murder is an intentional attack on life, and so forth.) Why is it always wrong to do so? It would be unreasonable simply to try to destroy an instance of a basic good, for no further purpose: for that would treat an instance of a basic good as something that it is not -- that is, as valueless. And it would be wrong to destroy an instance of a basic good for the sake of bringing about some other instance of a basic good: for that would make sense only if the good brought about were more valuable than the good destroyed, but on Finnis's view all distinct instances of basic goods are incommensurable -- none is of more, less, or equal value with any other. So the rule forbidding intentional destruction of an instance of a basic good is justified because it rules out only choices that presuppose something false about the nature of the basic goods.

The method approach presupposes less of substance about morality than the master rule approach presupposes. But it requires us to draw upon an interesting and rich knowledge of the features of the basic goods. Whether this information is available is a matter for debate. But the method approach has the advantage of firmly rooting natural law arguments for moral principles in the goods the pursuit of which those moral principles are supposed to regulate.

Neither the master rule nor the method approach implies that the natural law theorist must hold that all right action can be captured in general rules. The natural law view is only that there are some such rules. It is consistent with the natural law position that there are a number of choice situations in which there is a right answer, yet in which that right answer is not dictated by any natural law rule or set of rules, but rather is grasped only by a virtuous, practically wise person. It is, however, open to the natural law theorist to use this appeal to the judgment of the practically wise person more widely, holding that the general rules concerning the appropriate response to the goods cannot be properly determined by any master rule or philosophical method, but can be determined only by appeal to the insight of the person of practical wisdom. If it really is wrong in all cases to tell lies, as Aquinas and Grisez and Finnis have argued, our grasp of this moral truth is dependent on our possessing, or our being able to recognize the possessor of, practical wisdom. If such a person never tells lies, because she or he just sees that to tell lies would be to respond defectively to the good, then that lying is always wrong is a rule of the natural law.

It may be true that by the virtue approach we can learn of some general rules of the natural law. What is more interesting is whether a defender of the virtue approach would be right to dismiss the claims of the master rule or method approaches. (For, after all, one might be able to learn that lying is wrong either through moral argument or through the perceptive insight of practical wisdom.) And it does not seem that the defender of the master rule or method approach should be particularly concerned to discredit the virtue approach. For if defenders of the master rule or method approach recognize the existence of a capacity of judgment like practical wisdom, then it would be strange to allow that it can be correctly exercised on a number of particular occasions while denying that we might learn of general rules from observing patterns of its exercise on various occasions.

A more radical critique of the paradigmatic natural law account of the connection between the good and the right calls into question the very idea that one can get principles of moral rightness merely from what constitutes a defective response to the good. According to this critique, while it is true that one might be able to come up with some notion of unreasonableness by appeal to the notion of what is defective response to the human goods, the notion of moral rightness belongs to a family of concepts distinct from that to which the notion of reasonableness belongs. On this view, moral rightness belongs to the obligation family, and the concept of obligation is irreducibly social: one is under an obligation only if one is subject to some sort of demand in the context of a social relationship (see, for example, Adams 1999, pp. 238-241). It is part of the logic of obligation that when one is under an obligation, that condition has resulted from a demand imposed on him or her by some other party. So, according to this line of criticism, the paradigmatic natural law view is unable to show that the natural law is intrinsically morally authoritative: the precepts of the natural law can be rules that all of us human beings are obligated to obey, that it would be wrong for us to disobey, and that we would be guilty for flouting only if these precepts are imposed upon us by an authoritative being -- a being like God.

The intrinsic moral authority of the natural law has been a matter of debate since Aquinas: it was a central issue dividing Aquinas's view from those of Scotus, Ockham, and Suarez. It continues to be an issue between natural law theorists like Grisez (1983) and Finnis (1980) on one hand and theological voluntarists like Adams (1999) and Hare (2001) on the other. Natural law theorists have several options: they can argue against any meaningful distinction between morality and the reasonable more generally (Foot 2000, pp. 66-80); or they can embrace the distinction, but hold that on the clearest conception of the moral that we possess, the natural law account of reasonableness in action adequately satisfies that conception (Murphy 2001, pp. 222-227); or they can hold that the notion of ‘morally right’ is so muddled that it should be jettisoned, leaving in its stead the notion of the reasonable (cf. Anscombe 1958). It is at present far from clear which of these avenues of response the natural law theorist has most reason to embrace.
Bibliography

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* Aquinas, Thomas. Summa Theologiae. Cited as ST by part, question, and article.
* Aquinas, Thomas. Commentary on the Nicomachean Ethics. Cited as Commentary on NE by book, lectio, and section number.
* Aristotle. Nicomachean Ethics. Cited by book and chapter number.
* Chappell, T. D. J. 1995. Understanding Human Goods. Edinburgh University Press.
* Crowe, M. B. 1977. The Changing Profile of the Natural Law. Nijhoff.
* Duns Scotus, John. 1997. Duns Scotus on the Will and Morality. Ed. Allan Wolter. Catholic University of American Press.
* Finnis, John. 1980. Natural Law and Natural Rights. Oxford University Press.
* Finnis, John. 1996. “Is Natural Law Theory Compatible with Limited Government?” In Robert P. George, ed. Natural Law, Liberalism, and Morality. Oxford University Press.
* Finnis, John. 1998. Aquinas: Moral, Political, and Legal Theory. Oxford University Press.
* Foot, Philippa. 2000. Natural Goodness. Oxford University Press.
* Gauthier, David. 1986. Morals by Agreement. Oxford University Press.
* Gomez-Lobo, Alfonso. 2002. Morality and the Human Goods: An Introduction to Natural Law Ethics. Georgetown University Press.
* Grisez, Germain. 1965. “The First Principle of Practical Reason: A Commentary on the Summa Theologiae, 1-2, Question 94, Article 2.” Natural Law Forum 10, pp. 168-201.
* Grisez, Germain. 1983. The Way of the Lord Jesus, Volume I: Christian Moral Principles. Franciscan Herald Press.
* Grotius, Hugo. 1949. The Law of War and Peace. Trans. Louise R. Loomis. Walter Black.
* Haakonssen, Knud. 1992. “Natural Law Theory.” In Lawrence C. Becker and Charlotte B. Becker, eds. Encyclopedia of Ethics. Garland.
* Haakonssen, Knud. 1996. Natural Law and Moral Philosophy: From Grotius to the Scottish Enlightenment. Cambridge University Press.
* Hallett, Garth. 1995. Greater Good: The Case for Proportionalism. Georgetown University Press.
* Hare, John E. 2001. God's Call. Eerdmans.
* Hobbes, Thomas. 1994. Elements of Law: Natural and Politic. Ed. J. C. A. Gaskin. Oxford University Press. Cited as EL by chapter and section number.
* Hobbes, Thomas. 1993. Leviathan. Ed. Edwin Curley. Hackett. Cited as Leviathan by chapter and paragraph number.
* Hooker, Richard. 1989. Of the Laws of Ecclesiastical Polity. Ed. A. S. McGrade. Cambridge.
* Irwin, Terence. 2000. “Ethics as an Inexact Science: Aristotle's Ambitions for Moral Theory.” In Brad Hooker and Margaret Little, eds. Moral Particularism. Oxford University Press.
* Lisska, Anthony. 1996. Aquinas's Theory of Natural Law: An Analytic Reconstruction. Oxford University Press.
* Locke, John. 1988. Essays on the Law of Nature. Ed. W. von Leyden. Oxford University Press.
* MacIntyre, Alasdair. 1999. Dependent Rational Animals. Open Court.
* Moore, Michael. 1982. "Moral Reality." Wisconsin Law Review [1982], pp. 1061-1156.
* Moore, Michael. 1996. “Good without God.” In Robert P. George, ed. Natural Law, Liberalism, and Morality. Oxford University Press.
* Murdoch, Iris. 1970. The Sovereignty of Good. Routledge.
* Murphy, Mark C. 2001. Natural Law and Practical Rationality. Cambridge University Press.
* Pufendorf, Samuel. 1994. The Political Writings of Samuel Pufendorf. Trans. Michael J. Seidler. Oxford University Press.
* Rhonheimer, Martin. 2000. Natural Law and Practical Reason: A Thomist View of Moral Autonomy. Fordham University Press.
* Sayre-McCord, Geoffrey. 1988. “Introduction: The Many Moral Realisms.” In Sayre-McCord, ed., Essays on Moral Realism. Cornell University Press. 1988a, pp. 1-23.
* Striker, Gisela. 1986. “Origins of the Concept of Natural Law.” Proceedings of the Boston Area Colloquium in Ancient Philosophy 2, pp. 79-94.
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Legal Positivism

Legal positivism is the thesis that the existence and content of law depends on social facts and not on its merits. The English jurist John Austin (1790-1859) formulated it thus: “The existence of law is one thing; its merit and demerit another. Whether it be or be not is one enquiry; whether it be or be not conformable to an assumed standard, is a different enquiry.” (1832, p. 157) The positivist thesis does not say that law's merits are unintelligible, unimportant, or peripheral to the philosophy of law. It says that they do not determine whether laws or legal systems exist. Whether a society has a legal system depends on the presence of certain structures of governance, not on the extent to which it satisfies ideals of justice, democracy, or the rule of law. What laws are in force in that system depends on what social standards its officials recognize as authoritative; for example, legislative enactments, judicial decisions, or social customs. The fact that a policy would be just, wise, efficient, or prudent is never sufficient reason for thinking that it is actually the law, and the fact that it is unjust, unwise, inefficient or imprudent is never sufficient reason for doubting it. According to positivism, law is a matter of what has been posited (ordered, decided, practiced, tolerated, etc.); as we might say in a more modern idiom, positivism is the view that law is a social construction. Austin thought the thesis “simple and glaring.” While it is probably the dominant view among analytically inclined philosophers of law, it is also the subject of competing interpretations together with persistent criticisms and misunderstandings.

* 1. Development and Influence
* 2. The Existence and Sources of Law
* 3. Moral Principles and the Boundaries of Law
* 4. Law and Its Merits
* Bibliography
* Other Internet Resources
* Related Entries

1. Development and Influence

Legal positivism has a long history and a broad influence. It has antecedents in ancient political philosophy and is discussed, and the term itself introduced, in mediaeval legal and political thought (see Finnis 1996). The modern doctrine, however, owes little to these forbears. Its most important roots lie in the conventionalist political philosophies of Hobbes and Hume, and its first full elaboration is due to Jeremy Bentham (1748-1832) whose account Austin adopted, modified, and popularized. For much of the next century an amalgam of their views, according to which law is the command of a sovereign backed by force, dominated legal positivism and English philosophical reflection about law. By the mid-twentieth century, however, this account had lost its influence among working legal philosophers. Its emphasis on legislative institutions was replaced by a focus on law-applying institutions such as courts, and its insistence of the role of coercive force gave way to theories emphasizing the systematic and normative character of law. The most important architects of this revised positivism are the Austrian jurist Hans Kelsen (1881-1973) and the two dominating figures in the analytic philosophy of law, H.L.A. Hart (1907-92) and Joseph Raz among whom there are clear lines of influence, but also important contrasts. Legal positivism's importance, however, is not confined to the philosophy of law. It can be seen throughout social theory, particularly in the works of Marx, Weber, and Durkheim, and also (though here unwittingly) among many lawyers, including the American “legal realists” and most contemporary feminist scholars. Although they disagree on many other points, these writers all acknowledge that law is essentially a matter of social fact. Some of them are, it is true, uncomfortable with the label “legal positivism” and therefore hope to escape it. Their discomfort is sometimes the product of confusion. Lawyers often use “positivist” abusively, to condemn a formalistic doctrine according to which law is always clear and, however pointless or wrong, is to be rigorously applied by officials and obeyed by subjects. It is doubtful that anyone ever held this view; but it is in any case false, it has nothing to do with legal positivism, and it is expressly rejected by all leading positivists. Among the philosophically literate another, more intelligible, misunderstanding may interfere. Legal positivism is here sometimes associated with the homonymic but independent doctrines of logical positivism (the meaning of a sentence is its mode of verification) or sociological positivism (social phenomena can be studied only through the methods of natural science). While there are historical connections, and also commonalities of temper, among these ideas, they are essentially different. The view that the existence of law depends on social facts does not rest on a particular semantic thesis, and it is compatible with a range of theories about how one investigates social facts, including non-naturalistic accounts. To say that the existence of law depends on facts and not on its merits is a thesis about the relation among laws, facts, and merits, and not otherwise a thesis about the individual relata. Hence, most traditional “natural law” moral doctrines--including the belief in a universal, objective morality grounded in human nature--do not contradict legal positivism. The only influential positivist moral theories are the views that moral norms are valid only if they have a source in divine commands or in social conventions. Such theists and relativists apply to morality the constraints that legal positivists think hold for law.
2. The Existence and Sources of Law

Every human society has some form of social order, some way of marking and encouraging approved behavior, deterring disapproved behavior, and resolving disputes. What then is distinctive of societies with legal systems and, within those societies, of their law? Before exploring some positivist answers, it bears emphasizing that these are not the only questions worth asking. While an understanding of the nature of law requires an account of what makes law distinctive, it also requires an understanding of what it has in common with other forms of social control. Some Marxists are positivists about the nature of law while insisting that its distinguishing characteristics matter less than its role in replicating and facilitating other forms of domination. (Though other Marxists disagree: see Pashukanis). They think that the specific nature of law casts little light on their primary concerns. But one can hardly know that in advance; it depends on what the nature of law actually is.

According to Bentham and Austin, law is a phenomenon of large societies with a sovereign: a determinate person or group who have supreme and absolute de facto power -- they are obeyed by all or most others but do not themselves similarly obey anyone else. The laws in that society are a subset of the sovereign's commands: general orders that apply to classes of actions and people and that are backed up by threat of force or “sanction.” This imperatival theory is positivist, for it identifies the existence of legal systems with patterns of command and obedience that can be ascertained without considering whether the sovereign has a moral right to rule or whether his commands are meritorious. It has two other distinctive features. The theory is monistic: it represents all laws as having a single form, imposing obligations on their subjects, though not on the sovereign himself. The imperativalist acknowledges that ultimate legislative power may be self-limiting, or limited externally by what public opinion will tolerate, and also that legal systems contain provisions that are not imperatives (for example, permissions, definitions, and so on). But they regard these as part of the non-legal material that is necessary for, and part of, every legal system. (Austin is a bit more liberal on this point). The theory is also reductivist, for it maintains that the normative language used in describing and stating the law -- talk of authority, rights, obligations, and so on -- can all be analyzed without remainder in non-normative terms, ultimately as concatenations of statements about power and obedience.

Imperatival theories are now without influence in legal philosophy (but see Ladenson and Morison). What survives of their outlook is the idea that legal theory must ultimately be rooted in some account of the political system, an insight that came to be shared by all major positivists save Kelsen. Their particular conception of a society under a sovereign commander, however, is friendless (except among Foucauldians, who strangely take this relic as the ideal-type of what they call “juridical” power). It is clear that in complex societies there may be no one who has all the attributes of sovereignty, for ultimate authority may be divided among organs and may itself be limited by law. Moreover, even when “sovereignty” is not being used in its legal sense it is nonetheless a normative concept. A legislator is one who has authority to make laws, and not merely someone with great social power, and it is doubtful that “habits of obedience” is a candidate reduction for explaining authority. Obedience is a normative concept. To distinguish it from coincidental compliance we need something like the idea of subjects being oriented to, or guided by, the commands. Explicating this will carry us far from the power-based notions with which classical positivism hoped to work. The imperativalists' account of obligation is also subject to decisive objections (Hart, 1994, pp. 26-78; and Hacker). Treating all laws as commands conceals important differences in their social functions, in the ways they operate in practical reasoning, and in the sort of justifications to which they are liable. For instance, laws conferring the power to marry command nothing; they do not obligate people to marry, or even to marry according to the prescribed formalities. Nor is reductivism any more plausible here: we speak of legal obligations when there is no probability of sanctions being applied and when there is no provision for sanctions (as in the duty of the highest courts to apply the law). Moreover, we take the existence of legal obligations to be a reason for imposing sanctions, not merely a consequence of it.

Hans Kelsen retains the imperativalists' monism but abandons their reductivism. On his view, law is characterized by a basic form and basic norm. The form of every law is that of a conditional order, directed at the courts, to apply sanctions if a certain behavior (the “delict”) is performed. On this view, law is an indirect system of guidance: it does not tell subjects what to do; it tells officials what to do to its subjects under certain conditions. Thus, what we ordinarily regard as the legal duty not to steal is for Kelsen merely a logical correlate of the primary norm which stipulates a sanction for stealing (1945, p. 61). The objections to imperatival monism apply also to this more sophisticated version: the reduction misses important facts, such as the point of having a prohibition on theft. (The courts are not indifferent between, on the one hand, people not stealing and, on the other, stealing and suffering the sanctions.) But in one respect the conditional sanction theory is in worse shape than is imperativalism, for it has no principled way to fix on the delict as the duty-defining condition of the sanction -- that is but one of a large number of relevant antecedent conditions, including the legal capacity of the offender, the jurisdiction of the judge, the constitutionality of the offense, and so forth. Which among all these is the content of a legal duty?

Kelsen's most important contribution lies in his attack on reductivism and his doctrine of the “basic norm.” He maintains that law is normative and must understood as such. Might does not make right -- not even legal right -- so the philosophy of law must explain the fact that law is taken to impose obligations on its subjects. Moreover, law is a normative system: “Law is not, as it is sometimes said, a rule. It is a set of rules having the kind of unity we understand by a system” (1945, p. 3). For the imperativalists, the unity of a legal system consists in the fact that all its laws are commanded by one sovereign. For Kelsen, it consists in the fact that they are all links in one chain of authority. For example, a by-law is legally valid because it is created by a corporation lawfully exercising the powers conferred on it by the legislature, which confers those powers in a manner provided by the constitution, which was itself created in a way provided by an earlier constitution. But what about the very first constitution, historically speaking? Its authority, says Kelsen, is “presupposed.” The condition for interpreting any legal norm as binding is that the first constitution is validated by the following “basic norm:” “the original constitution is to be obeyed.” Now, the basic norm cannot be a legal norm -- we cannot fully explain the bindingness of law by reference to more law. Nor can it be a social fact, for Kelsen maintains that the reason for the validity of a norm must always be another norm -- no ought from is. It follows, then, that a legal system must consist of norms all the way down. It bottoms in a hypothetical, transcendental norm that is the condition of the intelligibility of any (and all) other norms as binding. To “presuppose” this basic norm is not to endorse it as good or just -- resupposition is a cognitive stance only -- but it is, Kelsen thinks, the necessary precondition for a non-reductivist account of law as a normative system.

There are many difficulties with this, not least of which is the fact that if we are willing to tolerate the basic norm as a solution it is not clear why we thought there was a problem in the first place. One cannot say both that the basic norm is the norm presupposing which validates all inferior norms and also that an inferior norm is part of the legal system only if it is connected by a chain of validity to the basic norm. We need a way into the circle. Moreover, it draws the boundaries of legal systems incorrectly. The Canadian Constitution of 1982 was lawfully created by an Act of the U.K. Parliament, and on that basis Canadian law and English law should be parts of a single legal system, rooted in one basic norm: ‘The (first) U.K. constitution is to be obeyed.’ Yet no English law is binding in Canada, and a purported repeal of the Constitution Act by the U.K. would be without legal effect in Canada.

If law cannot ultimately be grounded in force, or in law, or in a presupposed norm, on what does its authority rest? The most influential solution is now H.L.A. Hart's. His solution resembles Kelsen's in its emphasis on the normative foundations of legal systems, but Hart rejects Kelsen's transcendentalist, Kantian view of authority in favour of an empirical, Weberian one. For Hart, the authority of law is social. The ultimate criterion of validity in a legal system is neither a legal norm nor a presupposed norm, but a social rule that exists only because it is actually practiced. Law ultimately rests on custom: customs about who shall have the authority to decide disputes, what they shall treat as binding reasons for decision, i.e. as sources of law, and how customs may be changed. Of these three “secondary rules,” as Hart calls them, the source-determining rule of recognition is most important, for it specifies the ultimate criteria of validity in the legal system. It exists only because it is practiced by officials, and it is not only the recognition rule (or rules) that best explains their practice, it is rule to which they actually appeal in arguments about what standards they are bound to apply. Hart's account is therefore conventionalist (see Marmor, and Coleman, 2001): ultimate legal rules are social norms, although they are neither the product of express agreement nor even conventions in the Schelling-Lewis sense (see Green 1999). Thus for Hart too the legal system is norms all the way down, but at its root is a social norm that has the kind of normative force that customs have. It is a regularity of behavior towards which officials take “the internal point of view:” they use it as a standard for guiding and evaluating their own and others' behavior, and this use is displayed in their conduct and speech, including the resort to various forms of social pressure to support the rule and the ready application of normative terms such as “duty” and “obligation” when invoking it.

It is an important feature of Hart's account that the rule of recognition is an official custom, and not a standard necessarily shared by the broader community. If the imperativalists' picture of the political system was pyramidal power, Hart's is more like Weber's rational bureaucracy. Law is normally a technical enterprise, characterized by a division of labour. Ordinary subjects' contribution to the existence of law may therefore amount to no more than passive compliance. Thus, Hart's necessary and sufficient conditions for the existence of a legal system are that “those rules of behavior which are valid according to the system's ultimate criteria of validity must be generally obeyed, and ... its rules of recognition specifying the criteria of legal validity and its rules of change and adjudication must be effectively accepted as common public standards of official behavior by its officials” (1994, p. 116). And this division of labour is not a normatively neutral fact about law; it is politically charged, for it sets up the possibility of law becoming remote from the life of a society, a hazard to which Hart is acutely alert (1994, p. 117; cf. Waldron).

Although Hart introduces the rule of recognition through a speculative anthropology of how it might emerge in response to certain deficiencies in a customary social order, he is not committed to the view that law is a cultural achievement. To the contrary, the idea that legal order is always a good thing, and that societies without it are deficient, is a familiar element of many anti-positivist views, beginning with Henry Maine's criticism of Austin on the ground that his theory would not apply to certain Indian villages. The objection embraces the error it seeks to avoid. It imperialistically assumes that it is always a bad thing to lack law, and then makes a dazzling inference from ought to is: if it is good to have law, then each society must have it, and the concept of law must be adjusted to show that it does. If one thinks that law is a many splendored thing, one will be tempted by a very wide concept of law, for it would seem improper to charge others with missing out. Positivism simply releases the harness. Law is a distinctive form of political order, not a moral achievement, and whether it is necessary or even useful depends entirely on its content and context. Societies without law may be perfectly adapted to their environments, missing nothing.

A positivist account of the existence and content of law, along any of the above lines, offers a theory of the validity of law in one of the two main senses of that term (see Harris, pp. 107-111). Kelsen says that validity is the specific mode of existence of a norm. An invalid marriage is not a special kind of marriage having the property of invalidity; it is not a marriage at all. In this sense a valid law one that is systemically valid in the jurisdiction -- it is part of the legal system. This is the question that positivists answer by reference to social sources. It is distinct from the idea of validity as moral propriety, i.e. a sound justification for respecting the norm. For the positivist, this depends on its merits. One indication that these senses differ is that one may know that a society has a legal system, and know what its laws are, without having any idea whether they are morally justified. For example, one may know that the law of ancient Athens included the punishment of ostracism without knowing whether it was justified, because one does not know enough about its effects, about the social context, and so forth.

No legal positivist argues that the systemic validity of law establishes its moral validity, i.e. that it should be obeyed by subjects or applied by judges. Even Hobbes, to whom this view is sometimes ascribed, required that law actually be able to keep the peace, failing which we owe it nothing. Bentham and Austin, as utilitarians, hold that such questions always turn on the consequences and both acknowledge that disobedience is therefore sometimes fully justified. Kelsen insists that “The science of law does not prescribe that one ought to obey the commands of the creator of the constitution” (1967, p. 204). Hart thinks that there is only a prima facie duty to obey, grounded in and thus limited by fairness -- so there is no obligation to unfair or pointless laws (Hart 1955). Raz goes further still, arguing that there isn't even a prima facie duty to obey the law, not even in a just state (Raz 1979, pp. 233-49). The peculiar accusation that positivists believe the law is always to be obeyed is without foundation. Hart's own view is that an overweening deference to law consorts more easily with theories that imbue it with moral ideals, permitting “an enormous overvaluation of the importance of the bare fact that a rule may be said to be a valid rule of law, as if this, once declared, was conclusive of the final moral question: ‘Ought this law to be obeyed?” (Hart 1958, p. 75).
3. Moral Principles and the Boundaries of Law

The most influential criticisms of legal positivism all flow, in one way or another, from the suspicion that it fails to give morality its due. A theory that insists on the facticity of law seems to contribute little to our understanding that law has important functions in making human life go well, that the rule of law is a prized ideal, and that the language and practice of law is highly moralized. Accordingly, positivism's critics maintain that the most important features of law are not to be found in its source-based character, but in law's capacity to advance the common good, to secure human rights, or to govern with integrity. (It is a curious fact about anti-positivist theories that, while they all insist on the moral nature of law, without exception they take its moral nature to be something good. The idea that law might of its very nature be morally problematic does not seem to have occurred to them.)

It is beyond doubt that moral and political considerations bear on legal philosophy. As Finnis says, the reasons we have for establishing, maintaining or reforming law include moral reasons, and these reasons therefore shape our legal concepts (p. 204). But which concepts? Once one concedes, as Finnis does, that the existence and content of law can be identified without recourse to moral argument, and that “human law is artefact and artifice; and not a conclusion from moral premises,” (p. 205) the Thomistic apparatus he tries to resuscitate is largely irrelevant to the truth of legal positivism. This vitiates also Lon Fuller's criticisms of Hart (Fuller, 1958 and 1969). Apart from some confused claims about adjudication, Fuller has two main points. First, he thinks that it isn't enough for a legal system to rest on customary social rules, since law could not guide behavior without also being at least minimally clear, consistent, public, prospective and so on -- that is, without exhibiting to some degree those virtues collectively called “the rule of law.” It suffices to note that this is perfectly consistent with law being source-based. Even if moral properties were identical with, or supervened upon, these rule-of-law properties, they do so in virtue of their rule-like character, and not their law-like character. Whatever virtues inhere in or follow from clear, consistent, prospective, and open practices can be found not only in law but in all other social practices with those features, including custom and positive morality. And these virtues are minor: there is little to be said in favour of a clear, consistent, prospective, public and impartially administered system of racial segregation, for example. Fuller's second worry is that if law is a matter of fact, then we are without an explanation of the duty to obey. He gloatingly asks how “an amoral datum called law could have the peculiar quality of creating an obligation to obey it” (Fuller, 1958). One possibility he neglects is that it doesn't. The fact that law claims to obligate is, of course, a different matter and is susceptible to other explanations (Green 2001). But even if Fuller is right in his unargued assumption, the “peculiar quality” whose existence he doubts is a familiar feature of many moral practices. Compare promises: whether a society has a practice of promising, and what someone has promised to do, are matters of social fact. Yet promising creates moral obligations of performance or compensation. An “amoral datum” may indeed figure, together with other premises, in a sound argument to moral conclusions.

While Finnis and Fuller's views are thus compatible with the positivist thesis, the same cannot be said of Ronald Dworkin's important works (Dworkin 1978 and 1986). Positivism's most significant critic rejects the theory on every conceivable level. He denies that there can be any general theory of the existence and content of law; he denies that local theories of particular legal systems can identify law without recourse to its merits, and he rejects the whole institutional focus of positivism. A theory of law is for Dworkin a theory of how cases ought to be decided and it begins, not with an account of political organization, but with an abstract ideal regulating the conditions under which governments may use coercive force over their subjects. Force must only be deployed, he claims, in accordance with principles laid down in advance. A society has a legal system only when, and to the extent that, it honors this ideal, and its law is the set of all considerations that the courts of such a society would be morally justified in applying, whether or not those considerations are determined by any source. To identify the law of a given society we must engage in moral and political argument, for the law is whatever requirements are consistent with an interpretation of its legal practices (subject to a threshold condition of fit) that shows them to be best justified in light of the animating ideal. In addition to those philosophical considerations, Dworkin invokes two features of the phenomenology of judging, as he sees it. He finds deep controversy among lawyers and judges about how important cases should be decided, and he finds diversity in the considerations that they hold relevant to deciding them. The controversy suggests to him that law cannot rest on an official consensus, and the diversity suggests that there is no single social rule that validates all relevant reasons, moral and non-moral, for judicial decisions.

Dworkin's rich and complex arguments have attracted various lines of reply from positivists. One response denies the relevance of the phenomenological claims. Controversy is a matter of degree, and a consensus-defeating amount of it is not proved by the existence of adversarial argument in the high courts, or indeed in any courts. As important is the broad range of settled law that gives rise to few doubts and which guides social life outside the courtroom. As for the diversity argument, so far from being a refutation of positivism, this is an entailment of it. Positivism identifies law, not with all valid reasons for decision, but only with the source-based subset of them. It is no part of the positivist claim that the rule of recognition tells us how to decide cases, or even tells us all the relevant reasons for decision. Positivists accept that moral, political or economic considerations are properly operative in some legal decisions, just as linguistic or logical ones are. Modus ponens holds in court as much as outside, but not because it was enacted by the legislature or decided by the judges, and the fact that there is no social rule that validates both modus ponens and also the Municipalities Act is true but irrelevant. The authority of principles of logic (or morality) is not something to be explained by legal philosophy; the authority of acts of Parliament must be; and accounting for the difference is a central task of the philosophy of law.

Other positivists respond differently to Dworkin's phenomenological points, accepting their relevance but modifying the theory to accommodate them. So-called “inclusive positivists” (e.g., Waluchow (to whom the term is due), Coleman, Soper and Lyons) argue that the merit-based considerations may indeed be part of the law, if they are explicitly or implicitly made so by source-based considerations. For example, Canada's constitution explicitly authorizes for breach of Charter rights, “such remedy as the court considers appropriate and just in the circumstances.” In determining which remedies might be legally valid, judges are thus expressly told to take into account their morality. And judges may develop a settled practice of doing this whether or not it is required by any enactment; it may become customary practice in certain types of cases. Reference to moral principles may also be implicit in the web of judge-made law, for instance in the common law principle that no one should profit from his own wrongdoing. Such moral considerations, inclusivists claim, are part of the law because the sources make it so, and thus Dworkin is right that the existence and content of law turns on its merits, and wrong only in his explanation of this fact. Legal validity depends on morality, not because of the interpretative consequences of some ideal about how the government may use force, but because that is one of the things that may be customarily recognized as an ultimate determinant of legal validity. It is the sources that make the merits relevant.

To understand and assess this response, some preliminary clarifications are needed. First, it is not plausible to hold that the merits are relevant to a judicial decision only when the sources make it so. It would be odd to think that justice is a reason for decision only because some source directs an official to decide justly. It is of the nature of justice that it properly bears on certain controversies. In legal decisions, especially important ones, moral and political considerations are present of their own authority; they do not need sources to propel them into action. On the contrary, we expect to see a sourceÑa statute, a decision, or a conventionÑwhen judges are constrained not to appeal directly to the merits. Second, the fact that there is moral language in judicial decisions does not establish the presence of moral tests for law, for sources come in various guises. What sounds like moral reasoning in the courts is sometimes really source-based reasoning. For example, when the Supreme Court of Canada says that a publication is criminally “obscene” only if it is harmful, it is not applying J.S. Mill's harm principle, for what that court means by “harmful” is that it is regarded by the community as degrading or intolerable. Those are source-based matters, not moral ones. This is just one of many appeals to positive morality, i.e. to the moral customs actually practiced by a given society, and no one denies that positive morality may be a source of law. Moreover, it is important to remember that law is dynamic and that even a decision that does apply morality itself becomes a source of law, in the first instance for the parties and possibly for others as well. Over time, by the doctrine of precedent where it exists or through the gradual emergence of an interpretative convention where it does not, this gives a factual edge to normative terms. Thus, if a court decides that money damages are in some instances not a “just remedy” then this fact will join with others in fixing what “justice” means for these purposes. This process may ultimately detach legal concepts from their moral analogs (thus, legal “murder” may require no intention to kill, legal “fault” no moral blameworthiness, an “equitable” remedy may be manifestly unfair, etc.)

Bearing in mind these complications, however, there undeniably remains a great deal of moral reasoning in adjudication. Courts are often called on to decide what would reasonable, fair, just, cruel, etc. by explicit or implicit requirement of statute or common law, or because this is the only proper or intelligible way to decide. Hart sees this as happening pre-eminently in hard cases in which, owing to the indeterminacy of legal rules or conflicts among them, judges are left with the discretion to make new law. “Discretion,” however, may be a potentially misleading term here. First, discretionary judgments are not arbitrary: they are guided by merit-based considerations, and they may also be guided by law even though not fully determined by it -- judges may be empowered to make certain decisions and yet under a legal duty to make them in a particular way, say, in conformity with the spirit of preexisting law or with certain moral principles (Raz 1994, pp. 238-53). Second, Hart's account might wrongly be taken to suggest that there are fundamentally two kinds of cases, easy ones and hard ones, distinguished by the sorts of reasoning appropriate to each. A more perspicuous way of putting it would be to say that there are two kinds of reasons that are operative in every case: source-based reasons and non-source-based reasons. Law application and law creation are continuous activities for, as Kelsen correctly argued, every legal decision is partly determined by law and partly underdetermined: “The higher norm cannot bind in every direction the act by which it is applied. There must always be more or less room for discretion, so that the higher norm in relation to the lower one can only have the character of a frame to be filled by this act” (1967, p. 349). This is a general truth about norms. There are infinitely many ways of complying with a command to “close the door” (quickly or slowly, with one's right hand or left, etc.) Thus, even an “easy case” will contain discretionary elements. Sometimes such residual discretion is of little importance; sometimes it is central; and a shift from marginal to major can happen in a flash with changes in social or technological circumstances. That is one of the reasons for rejecting a strict doctrine of separation of powers -- Austin called it a “childish fiction” -- according to which judges only apply and never make the law, and with it any literal interpretation of Dworkin's ideal that coercion be deployed only according to principles laid down in advance.

It has to be said, however, that Hart himself does not consistently view legal references to morality as marking a zone of discretion. In a passing remark in the first edition of The Concept of Law, he writes, “In some legal systems, as in the United States, the ultimate criteria of legal validity explicitly incorporate principles of justice or substantive moral values …” (1994, p. 204). This thought sits uneasily with other doctrines of importance to his theory. For Hart also says that when judges exercise moral judgment in the penumbra of legal rules to suppose that their results were already part of existing law is “in effect, an invitation to revise our concept of what a legal rule is …” (1958, p. 72). The concept of a legal rule, that is, does not include all correctly reasoned elaborations or determinations of that rule. Later, however, Hart comes to see his remark about the U.S. constitution as foreshadowing inclusive positivism (“soft positivism,” as he calls it). Hart's reasons for this shift are obscure (Green 1996). He remained clear about how we should understand ordinary statutory interpretation, for instance, where the legislature has directed that an applicant should have a “reasonable time” or that a regulator may permit only a “fair price:” these grant a bounded discretion to decide the cases on their merits. Why then does Hart -- and even more insistently, Waluchow and Coleman -- come to regard constitutional adjudication differently? Is there any reason to think that a constitution permitting only a “just remedy” requires a different analysis than a statute permitting only a “fair rate?”

One might hazard the following guess. Some of these philosophers think that constitutional law expresses the ultimate criteria of legal validity: because unjust remedies are constitutionally invalid and void ab initio, legally speaking they never existed (Waluchow). That being so, morality sometimes determines the existence or content of law. If this is the underlying intuition, it is misleading, for the rule of recognition is not to be found in constitutions. The rule of recognition is the ultimate criterion (or set of criteria) of legal validity. If one knows what the constitution of a country is, one knows some of its law; but one may know what the rule of recognition is without knowing any of its laws. You may know that acts of the Bundestag are a source of law in Germany but not be able to name or interpret a single one of them. And constitutional law is itself subject to the ultimate criteria of systemic validity. Whether a statute, decision or convention is part of a country's constitution can only be determined by applying the rule of recognition. The provisions of the 14th Amendment to the U.S. constitution, for example, are not the rule of recognition in the U.S., for there is an intra-systemic answer to the question why that Amendment is valid law. The U.S. constitution, like that of all other countries, is law only because it was created in ways provided by law (through amendment or court decision) or in ways that came to be accepted as creating law (by constitutional convention and custom). Constitutional cases thus raise no philosophical issue not already present in ordinary statutory interpretation, where inclusive positivists seem content with the theory of judicial discretion. It is, of course, open to them to adopt a unified view and treat every explicit or implicit legal reference to morality -- in cases, statutes, constitutions, and customs -- as establishing moral tests for the existence of law. (Although at that point it is unclear how their view would differ from Dworkin's.) So we should consider the wider question: why not regard as law everything referred to by law?

Exclusive positivists offer three main arguments for stopping at social sources. The first and most important is that it captures and systematizes distinctions we regularly make and that we have good reason to continue to make. We assign blame and responsibility differently when we think that a bad decision was mandated by the sources than we do when we think that it flowed from a judge's exercise of moral or political judgement. When considering who should be appointed to the judiciary, we are concerned not only with their acumen as jurists, but also with their morality and politics--and we take different things as evidence of these traits. These are deeply entrenched distinctions, and there is no reason to abandon them.

The second reason for stopping at sources is that this is demonstrably consistent with key features of law's role in practical reasoning. The most important argument to this conclusion is due to Raz (1994, pp. 210-37). For a related argument see Shapiro. For criticism see Perry, Waluchow, Coleman 2001, and Himma.) Although law does not necessarily have legitimate authority, it lays claim to it, and can intelligibly do so only if it is the kind of thing that could have legitimate authority. It may fail, therefore, in certain ways only, for example, by being unjust, pointless, or ineffective. But law cannot fail to be a candidate authority, for it is constituted in that role by our political practices. According to Raz, practical authorities mediate between subjects and the ultimate reasons for which they should act. Authorities' directives should be based on such reasons, and they are justified only when compliance with the directives makes it more likely that people will comply with the underlying reasons that apply to them. But they can do that only if is possible to know what the directives require independent of appeal to those underlying reasons. Consider an example. Suppose we agree to resolve a dispute by consensus, but that after much discussion find ourselves in disagreement about whether some point is in fact part of the consensus view. It will do nothing to say that we should adopt it if it is indeed properly part of the consensus. On the other hand, we could agree to adopt it if it were endorsed by a majority vote, for we could determine the outcome of a vote without appeal to our ideas about what the consensus should be. Social sources can play this mediating role between persons and ultimate reasons, and because the nature of law is partly determined by its role in giving practical guidance, there is a theoretical reason for stopping at source-based considerations.

The third argument challenges an underlying idea of inclusive positivism, what we might call the Midas Principle. “Just as everything King Midas touched turned into gold, everything to which law refers becomes law … ” (Kelsen 1967, p. 161). Kelsen thought that it followed from this principle that “It is … possible for the legal order, by obliging the law-creating organs to respect or apply certain moral norms or political principles or opinions of experts to transform these norms, principles, or opinions into legal norms, and thus into sources of law” (Kelsen 1945, p. 132). (Though he regarded this transformation as effected by a sort of tacit legislation.) If sound, the Midas Principle holds in general and not only with respect to morality, as Kelsen makes clear. Suppose then that the Income Tax Act penalizes overdue accounts at 8% per annum. In a relevant case, an official can determine the content of a legal obligation only by calculating compound interest. Does this make mathematics part of the law? A contrary indication is that it is not subject to the rules of change in a legal system -- neither courts nor legislators can repeal or amend the law of commutativity. The same holds of other social norms, including the norms of foreign legal systems. A conflict-of-laws rule may direct a Canadian judge to apply Mexican law in a Canadian case. The conflicts rule is obviously part of the Canadian legal system. But the rule of Mexican law is not, for although Canadian officials can decide whether or not to apply it, they can neither change it nor repeal it, and best explanation for its existence and content makes no reference to Canadian society or its political system. In like manner, moral standards, logic, mathematics, principles of statistical inference, or English grammar, though all properly applied in cases, are not themselves the law, for legal organs have applicative but not creative power over them. The inclusivist thesis is actually groping towards an important, but different, truth. Law is an open normative system (Raz 1975, pp. 152-54): it adopts and enforces many other standards, including moral norms and the rules of social groups. There is no warrant for adopting the Midas Principle to explain how or why it does this.
4. Law and Its Merits

It may clarify the philosophical stakes in legal positivism by comparing it to a number of other theses with which it is sometimes wrongly identified, and not only by its opponents. (See also Hart, 1958, Fuesser, and Schauer.)
4.1 The Fallibility Thesis

Law does not necessarily satisfy the conditions by which it is appropriately assessed (Lyons 1984, p. 63, Hart 1994, pp. 185-6). Law should be just, but it may not be; it should promote the common good, but sometimes it doesn't; it should protect moral rights, but it may fail miserably. This we may call the moral fallibility thesis. The thesis is correct, but it is not the exclusive property of positivism. Aquinas accepts it, Fuller accepts it, Finnis accepts it, and Dworkin accepts it. Only a crude misunderstanding of ideas like Aquinas's claim that “an unjust law seems to be no law at all” might suggest the contrary. Law may have an essentially moral character and yet be morally deficient. Even if every law always does one kind of justice (formal justice; justice according to law), this does not entail that it does every kind of justice. Even if every law has a prima facie claim to be applied or obeyed, it does not follow that it has such a claim all things considered. The gap between these partial and conclusive judgments is all a natural law theory needs to accommodate the fallibility thesis. It is sometimes said that positivism gives a more secure grasp on the fallibility of law, for once we see that it is a social construction we will be less likely to accord it inappropriate deference and better prepared to engage in a clear-headed moral appraisal of the law. This claim has appealed to several positivists, including Bentham and Hart. But while this might follow from the truth of positivism, it cannot provide an argument for it. If law has an essentially moral character then it is obfuscating, not clarifying, to describe it as a source-based structure of governance.
4.2 The Separability Thesis

At one point, Hart identifies legal positivism with “the simple contention that it is no sense a necessary truth that laws reproduce or satisfy certain demands of morality, though in fact they have often done so” (1994, pp. 185-86). Many other philosophers, encouraged also by the title of Hart's famous essay, “Positivism and the Separation of Law and Morals,” (1958) treat the theory as the denial that there is a necessary connection between law and morality -- they must be in some sense “separable” even if not in fact separate (Coleman, 1982). The separability thesis is generally construed so as to tolerate any contingent connection between morality and law, provided only that it is conceivable that the connection might fail. Thus, the separability thesis is consistent with all of the following: (i) moral principles are part of the law; (ii) law is usually, or even always in fact, valuable; (iii) the best explanation for the content of a society's laws includes reference to the moral ideals current in that society; and (iv) a legal system cannot survive unless it is seen to be, and thus in some measure actually is, just. All four claims are counted by the separability thesis as contingent connections only; they do not hold of all possible legal systems -- they probably don't even hold of all historical legal systems. As merely contingent truths, it is imagined that they do not affect the concept of law itself. (This is a defective view of concept-formation, but we may ignore that for these purposes.) If we think of the positivist thesis this way, we might interpret the difference between exclusive and inclusive positivism in terms of the scope of the modal operator:

(EP) It is necessarily the case that there is no connection between law and morality.

(IP) It is not necessarily the case that there is a connection between law and morality.

In reality, however, legal positivism is not to be identified with either thesis and each of them is false. There are many necessary “connections,” trivial and non-trivial, between law and morality. As John Gardner notes, legal positivism takes a position only one of them, it rejects any dependence of the existence of law on its merits (Gardner 2001). And with respect to this dependency relation, legal positivists are concerned with much more than the relationship between law and morality, for in the only sense in which they insist on a separation of law and morals they must insist also--and for the same reasons--on a separation of law and economics.

To exclude this dependency relation, however, is to leave intact many other interesting possibilities. For instance, it is possible that moral value derives from the sheer existence of law (Raz 1990, 165-70) If Hobbes is right, any order is better than chaos and in some circumstances order may be achievable only through positive law. Or perhaps in a Hegelian way every existing legal system expresses deliberate governance in a world otherwise dominated by chance; law is the spirit of the community come to self-consciousness. Notice that these claims are consistent with the fallibility thesis, for they do not deny that these supposedly good things might also bring evils, such as too much order or the will to power. Perhaps such derivative connections between law and morality are thought innocuous on the ground that they show more about human nature than they do about the nature of law. The same cannot be said of the following necessary connections between law and morality, each of which goes right to the heart of our concept of law:

(1) Necessarily, law deals with moral matters.

Kelsen writes, “Just as natural and positive law govern the same subject-matter, and relate, therefore, to the same norm-object, namely the mutual relationships of men -- so both also have in common the universal form of this governance, namely obligation.” (Kelsen 1928, p. 34) This is a matter of the content of all legal systems. Where there is law there is also morality, and they regulate the same matters by analogous techniques. Of course to say that law deals with morality's subject matter is not to say that it does so well, and to say that all legal systems create obligations is not to endorse the duties so created. This is broader than Hart's “minimum content” thesis according to which there are basic rules governing violence, property, fidelity, and kinship that any legal system must encompass if it aims at the survival of social creatures like ourselves (Hart 1994, pp. 193-200). Hart regards this as a matter of “natural necessity” and in that measure is willing to qualify his endorsement of the separability thesis. But even a society that prefers national glory or the worship of gods to survival will charge its legal system with the same tasks its morality pursues, so the necessary content of law is not dependent, as Hart thinks it is, on assuming certain facts about human nature and certain aims of social existence. He fails to notice that if human nature and life were different, then morality would be too and if law had any role in that society, it would inevitably deal with morality's subject matter. Unlike the rules of a health club, law has broad scope and reaches to the most important things in any society, whatever they may be. Indeed, our most urgent political worries about law and its claims flow from just this capacity to regulate our most vital interests, and law's wide reach must figure in any argument about its legitimacy and its claim to obedience.

(2) Necessarily, law makes moral claims on its subjects.

The law tells us what we must do, not merely what it would be virtuous or advantageous to do, and it requires us to act without regard to our individual self-interest but in the interests of other individuals, or in the public interest more generally (except when law itself permits otherwise). That is to say, law purports to obligate us. But to make categorical demands that people should act in the interests of others is to make moral demands on them. These demands may be misguided or unjustified for law is fallible; they may be made in a spirit that is cynical or half-hearted; but they must be the kind of thing that can be offered as, and possibly taken as, obligation-imposing requirements. For this reason neither a regime of “stark imperatives” (see Kramer, pp. 83-9) nor a price system would be a system of law, for neither could even lay claim to obligate its subjects. As with many other social institutions, what law, though its officials, claims determines its character independent of the truth or validity of those claims. Popes, for example, claim apostolic succession from St. Peter. The fact that they claim this partly determines what it is to be a Pope, even if it is a fiction, and even the Pope himself doubts its truth. The nature of law is similarly shaped by the self-image it adopts and projects to its subjects. To make moral demands on their compliance is to stake out a certain territory, to invite certain kinds of support and, possibly, opposition. It is precisely because law makes these claims that doctrines of legitimacy and political obligation take the shape and importance that they do.

(3) Necessarily, law is justice-apt.

In view of the normative function of law in creating and enforcing obligations and rights, it always makes sense to ask whether law is just, and where it is found deficient to demand reform. Legal systems are therefore the kind of thing that is apt for appraisal as just or unjust. This is a very significant feature of law. Not all human practices are justice-apt. It makes no sense to ask whether a certain fugue is just or to demand that it become so. The musical standards of fugal excellence are preeminently internal -- a good fugue is a good example of its genre; it should be melodic, interesting, inventive etc. -- and the further we get from these internal standards the less secure evaluative judgments about it become. While some formalists flirt with similar ideas about law, this is in fact inconsistent with law's place amongst human practices. Even if law has internal standards of merit -- virtues uniquely its own that inhere in its law-like character -- these cannot preclude or displace its assessment on independent criteria of justice. A fugue may be at its best when it has all the virtues of fugacity; but law is not best when it excels in legality; law must also be just. A society may therefore suffer not only from too little of the rule of law, but also from too much of it. This does not presuppose that justice is the only, or even the first, virtue of a legal system. It means that our concern for its justice as one of its virtues cannot be sidelined by any claim of the sort that law's purpose is to be law, to its most excellent degree. Law stands continuously exposed to demands for justification, and that too shapes its nature and role in our lives and culture.

These three theses establish connections between law and morality that are both necessary and highly significant. Each of them is consistent with the positivist thesis that the existence and content of law depends on social facts, not on its merits. Each of them contributes to an understanding of the nature of law. The familiar idea that legal positivism insists on the separability of law and morality is therefore significantly mistaken.
4.3 The Neutrality Thesis

The necessary content thesis and the justice-aptitude thesis together establish that law is not value-neutral. Although some lawyers regard this idea as a revelation (and others as provocation) it is in fact banal. The thought that law could be value neutral does not even rise to falsity -- it is simply incoherent. Law is a normative system, promoting certain values and repressing others. Law is not neutral between victim and murderer or between owner and thief. When people complain of the law's lack of neutrality, they are in fact voicing very different aspirations, such as the demand that it be fair, just, impartial, and so forth. A condition of law's achieving any of these ideals is that it is not neutral in either its aims or its effects.

Positivism is however sometimes more credibly associated with the idea that legal philosophy is or should be value-neutral. Kelsen, for example, says, “the function of the science of law is not the evaluation of its subject, but its value-free description” (1967, p. 68) and Hart at one point described his work as “descriptive sociology” (1994, p. v). Since it is well known that there are convincing arguments for the ineliminability of values in the social sciences, those who have taken on board Quinian holisms, Kuhnian paradigms, or Foucauldian espistemes, may suppose that positivism should be rejected a priori, as promising something that no theory can deliver.

There are complex questions here, but some advance may be made by noticing that Kelsen's alternatives are a false dichotomy. Legal positivism is indeed not an “evaluation of its subject”, i.e., an evaluation of the law. And to say that the existence of law depends on social facts does not commit one to thinking that it is a good thing that this is so. (Nor does it preclude it: see MacCormick and Campbell) Thus far Kelsen is on secure ground. But it does not follow that legal philosophy therefore offers a “value-free description” of its subject. There can be no such thing. Whatever the relation between facts and values, there is no doubt about the relationship between descriptions and values. Every description is value-laden. It selects and systematizes only a subset of the infinite number of facts about its subject. To describe law as resting on customary social rules is to omit many other truths about it including, for example, truths about its connection to the demand for paper or silk. Our warrant for doing this must rest on the view that the former facts are more important than the latter. In this way, all descriptions express choices about what is salient or significant, and these in turn cannot be understood without reference to values. So legal philosophy, even if not directly an evaluation of its subject is nonetheless “indirectly evaluative” (Dickson, 2001). Moreover, “law” itself is an anthropocentric subject, dependent not merely on our sensory embodiment but also, as its necessary connections to morality show, on our moral sense and capacities. Legal kinds such as courts, decisions, and rules will not appear in a purely physical description of the universe and may not even appear in every social description. (This may limit the prospects for a “naturalized” jurisprudence; though for a spirited defense of the contrary view, see Leiter)

It may seem, however, that legal positivism at least requires a stand on the so-called “fact-value” problem. There is no doubt that certain positivists, especially Kelsen, believe this to be so. In reality, positivism may cohabit with a range of views here -- value statements may be entailed by factual statements; values may supervene on facts; values may be kind of fact. Legal positivism requires only that it be in virtue of its facticity rather than its meritoriousness that something is law, and that we can describe that facticity without assessing its merits. In this regard, it is important to bear in mind that not every kind of evaluative statement would count among the merits of a given rule; its merits are only those values that could bear on its justification.

Evaluative argument is, of course, central to the philosophy of law more generally. No legal philosopher can be only a legal positivist. A complete theory of law requires also an account of what kinds of things could possibly count as merits of law (must law be efficient or elegant as well as just?); of what role law should play in adjudication (should valid law always be applied?); of what claim law has on our obedience (is there a duty to obey?); and also of the pivotal questions of what laws we should have and whether we should have law at all. Legal positivism does not aspire to answer these questions, though its claim that the existence and content of law depends only on social facts does give them shape.
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